In Re Cb

706 S.E.2d 752
CourtCourt of Appeals of Georgia
DecidedMarch 2, 2011
DocketA10A2082
StatusPublished

This text of 706 S.E.2d 752 (In Re Cb) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Cb, 706 S.E.2d 752 (Ga. Ct. App. 2011).

Opinion

706 S.E.2d 752 (2011)

In the Interest of C.B., a child.

No. A10A2082.

Court of Appeals of Georgia.

March 2, 2011.

*754 Ali-Reza P. Ghanouni, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Thompson, Meier & King, Dana M. Thompson, Canton, Jessica Marie Chapman, for appellee.

BLACKWELL, Judge.

Following an evidentiary hearing, the juvenile court determined that C.B., a minor child, is deprived. The father of the child appeals, contending that the juvenile court erred at the evidentiary hearing by admitting hearsay evidence and by taking judicial notice of prior proceedings and orders concerning the same child without, the father says, giving him sufficient notice of its intent to do so. The father also claims that insufficient evidence was adduced at the hearing to sustain the finding of deprivation. The record on appeal, however, does not reveal any reversible error, and for this reason, we affirm.

1. We turn first to the contention that the juvenile court erred at the hearing by admitting hearsay evidence. The father made several objections at the hearing, including some on hearsay grounds, and many of these objections were sustained by the juvenile court. Although a few objections were overruled, the father does not specify the overruling of any particular objection as error. Instead, the father complains on appeal that the juvenile court allowed a case worker employed with the Cherokee County Department of Family and Children Services (DFACS) to testify about facts of which her knowledge was based exclusively, the father claims, upon her review of records contained in a DFACS case file. But the father made no timely objection to this testimony below, and because he did not, he failed to preserve any error in admitting the testimony for our review. See In the Interest of A.K., 272 Ga.App. 429, 435(1)(b), 612 S.E.2d 581 (2005); In the Interest of H.D.M., 241 Ga.App. 805, 808(2), 527 S.E.2d 633 (2000). For this reason, the contention that the juvenile court erred at the hearing by admitting hearsay evidence affords no basis for us to reverse the decision below.

The father says that, even if he failed to preserve the admission of hearsay evidence for review on appeal by a timely objection below, hearsay has no probative value, and we, therefore, cannot consider it when we assess whether the evidence is sufficient to sustain a finding of deprivation. That may be true enough, see In the Interest of J.C., 242 Ga. 737, 740(3), 251 S.E.2d 299 (1978), but it does not help the father here. From our review of the record, whether most of the testimony about which the father complains is, in fact, hearsay is uncertain.[1] It may be true, as the father claims, that the caseworker knew about certain facts to which she testified only because she read about them in a case file. But the father did not object to this testimony, did not voir dire the caseworker about the basis of her knowledge of these facts, and did not later cross-examine the caseworker about the basis of her knowledge. For all we know, the case worker had personal and direct knowledge of these facts. When a witness testifies without objection about a specific fact, we will not deem it hearsay and without probative value unless it appears clearly from the record that the witness's knowledge of this fact is based exclusively upon what she was told or what she read.[2] See In the Interest of C.M., 258 *755 Ga.App. 387, 388(2), 574 S.E.2d 433 (2002) ("We will not presume the trial court committed error where that fact does not affirmatively appear in the record.").

2. We turn next to the contention that the juvenile court improperly took judicial notice of prior proceedings and orders concerning C.B. The father says that the juvenile court could not properly take judicial notice of these prior proceedings and orders because it did not afford him notice of its intent to do so and an opportunity to object. But the written order from which this appeal was taken clearly makes reference to the prior proceedings and orders, and this order reflects that the father consented to its form several days before the judge signed it.[3] Accordingly, the father had notice that the proposed written order made reference to the prior proceedings and orders, but the father apparently did nothing to object to these references or bring the issue of judicial notice to the attention of the juvenile court before the order was entered, although he had several days in which to do so. As such, the father was afforded adequate notice of the possibility that the juvenile court might take judicial notice of the prior proceedings and orders, and he waived any objection to the taking of judicial notice.[4] See In the Interest of S.Y., 264 Ga.App. 623, 625(2), 591 S.E.2d 489 (2003); In the Interest of M.N.H., 237 Ga.App. 471, 474(2), 517 S.E.2d 344 (1999), overruled in part on other grounds, State v. Herendeen, 279 Ga. 323, 613 S.E.2d 647 (2005). For these reasons, the taking of judicial notice of prior proceedings and orders concerning C.B. affords no basis for us to reverse the decision of the juvenile court.

3. We turn finally to the contention that the evidence adduced at the evidentiary hearing is insufficient to sustain the finding of deprivation. Proof of deprivation must be clear and convincing, and on appeal, we ask whether any reasonable trier of fact could have found such proof of deprivation, viewing the evidence in the light most favorable to the findings of the juvenile court below. See In the Interest of R.M., 276 Ga.App. 707, 707, 624 S.E.2d 182 (2005). According to our statutes, a child is deprived if he is "without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health or morals." OCGA § 15-11-2(8)(A). A finding of deprivation also requires proof that the circumstances amounting to deprivation "resulted from unfitness on the part of the parent, that is, either 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." R.M., 276 Ga.App. at 715, 624 S.E.2d 182 (citation and punctuation omitted). In this case, the juvenile court found that the mother presented a danger to C.B. and that the father deprived C.B. by failing to protect him from his mother. We think the evidence is sufficient to sustain these findings.

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Bluebook (online)
706 S.E.2d 752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cb-gactapp-2011.