In the Interest of A. B.

589 S.E.2d 264, 263 Ga. App. 697, 2003 Fulton County D. Rep. 3175, 2003 Ga. App. LEXIS 1293
Court of Appeals of Georgia·Decided October 21, 2003·No. A03A1601·Published·Cited by 5 cases

Opinion

Adams, Judge.

The biological mother of A. B. appeals an order entered by the Juvenile Court of Gwinnett County that found A. B. deprived. She contests the sufficiency of evidence as to the finding of deprivation and challenges the state’s refusal to create a reunification plan.

On appeal from a deprivation order, we must view 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 child was deprived. In the Interest of B. M. B., 241 Ga. App. 609 (527 SE2d 250) (1999). In reviewing a court’s finding of deprivation, we defer to that court’s factfinding and affirm unless the appellate standard is not met. In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998).

So viewed, in September 2001, the appellant had custody of her three children, D. B. then age nine, R. B. age six, and J. B. age three. After allegedly receiving a report that appellant’s live-in boyfriend had physically abused R. B. and J. B., the Department of Family and Children Services (DFACS) purportedly began an investigation, but as of October 18, 2001, DFACS had not reached any conclusion. On October 18, appellant’s boyfriend beat three-year-old J. B. so severely that she died. After that death, appellant sent her other two children to live with their grandmother in Arkansas from where this state had them picked up and returned to Georgia.

After the appellant’s boyfriend’s arrest for murdering her daughter, she allegedly visited him in jail and sent him letters. The state charged her with three counts of child cruelty for aiding and abetting in her daughter’s death. During the time that her boyfriend remained incarcerated, appellant became pregnant by another man and gave birth to A. B., the subject of this action, on September 12, 2002.1 Shortly after A. B.’s birth, he was taken into emergency shelter care on September 23, 2002, because his mother faced felony charges and his half-sibling had been murdered by his mother’s then boyfriend.

The hearing on this case was combined with issues relating to [698]*698A. B.’s half-siblings, D. B. and R. B., and the juvenile court took judicial notice of prior evidence and factual findings from those cases. The sole witness to testify at the consolidated hearing was Dr. Elizabeth Moye, the psychologist treating D. B., then age ten, and all of her testimony concerned D. B. She testified that D. B. was “acutely psychotic” and extremely unstable. Dr. Moye said she had no specific recommendation as to whether the mother should be allowed visits with D. B., but she had some concerns because he “is still so unstable” and is “very angry” at the mother. Dr. Moye testified that D. B. worried that his mother’s boyfriend “was going to send somebody to kill him.” As to whether or not D. B. had, in fact, let his mother know about the boyfriend’s abusive treatment, Dr. Moye testified, “I’m not sure what the truth is.”

After Dr. Moye completed her testimony, the hearing turned to A. B., and no additional evidence was proffered. The state and A. B.’s guardian ad litem asked that A. B. be found deprived and that DFACS maintain custody of him. In adjudicating the status of A. B., the juvenile court found clear and convincing evidence that A. B. is deprived within the meaning of OCGA § 15-11-2 (8) and “in need of the court’s protection, supervision and care to ensure his health, safety and welfare.” Noting that his mother still faced “felony charges of child cruelty in aiding and abetting in the death of her daughter,” the court decided that a return to the home would be contrary to A. B.’s welfare. The court found that “[t]he child is deprived because the mother failed to protect the child’s siblings from physical abuse, which eventually resulted in the death of his sister.” The juvenile court concluded,

[b]ased on the Court’s prior findings that the mother tried to conceal the identity of the perpetrator in her daughter’s death, and then hindered the investigation by sending her remaining children to her mother’s in Arkansas, the mother is to have no visitation with the child and the Department does not need to pursue reunification efforts with regard to the mother.

1. A. B.’s mother contends that the juvenile court erred in finding the existence of clear and convincing evidence to support a finding that A. B. was deprived in her care and custody. She argues that all of the purported evidence of deprivation related to her other children and not to A. B. and to events that occurred before the birth of A. B. She claims that “the perpetrator of those [earlier] actions is incarcerated and no longer in the home.” She contends that while one’s past conduct may properly be considered as a predictor of future conduct, the trial court needed to supplement that consideration with a find[699]*699ing that deprivation is likely to continue but failed to do so. See In the Interest of T.B., 249 Ga. App. 283, 286 (548 SE2d 45) (2001).

“[A] trial court may take judicial cognizance ... of records on file in its own court.” Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984). In determining whether A. B. was a deprived child as defined by statute, the juvenile court, however, took judicial notice of evidence from the 72-hour hearing conducted by a different judge. Since the appellate record does not contain transcripts of the other hearings or the records from any other case, it is not clear how much reliance was placed on evidence not before that court.2

Moreover, the record before this Court, which contains a mere 15 pages, is sketchy at best and replete with hearsay and unsubstantiated statements. The transcript consists primarily of argument and contains the testimony of a lone witness, Dr. Moye, who gave no testimony about A. B. and testified that she was not sure that D. B. had told his mother about the boyfriend’s abuse.

It is undisputed that the appellant did not abandon A. B. or place him for care or adoption in violation of the law. See OCGA § 15-11-2 (8) (B), (C). Thus, at issue is whether A. B. is a “deprived child” meaning that he “[i]s 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). But the state took custody of A. B., within days of his birth, and apparently made absolutely no plans for the reunification of mother and child. As such, the record lacks clear and convincing evidence that: “(ii) [t]he lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) [s]uch cause of deprivation is likely to continue or will not likely be remedied; and (iv) [t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-94 (b) (4) (A) (ii)-(iv). Although it may well be that A. B.

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In the Interest of A. B., 589 S.E.2d 264, 263 Ga. App. 697, 2003 Fulton County D. Rep. 3175, 2003 Ga. App. LEXIS 1293 (Ga. Ct. App. 2003).

589 S.E.2d 264 (In the Interest of A. B.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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