In the Interest of A. S.

734 S.E.2d 225, 318 Ga. App. 457
Court of Appeals of Georgia·Decided November 13, 2012·No. A12A1570·Published·Cited by 2 cases

Opinion

BARNES, Presiding Judge.

The father of three minor children appeals from the juvenile court’s order finding the children to be deprived and discontinuing reunification services. He contends that the juvenile court erred in finding the children deprived, in admitting hearsay testimony, and in relieving the Department of Family and Children Services (DFCS) from providing him with reunification services. For the reasons that follow, we affirm.

“On appeal from a juvenile court’s order finding deprivation, 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 were deprived.” (Citation and punctuation omitted.) In the Interest of G. G., 253 Ga. App. 565 (560 SE2d 69) (2002).

In a nonpublished opinion issued on March 31, 2010, this court affirmed a contempt order issued by the juvenile court against the father in August 2009. In the Interest of A. S., 303 Ga. App. XXII (March 31, 2010). We noted that the children were subject to the juvenile court’s jurisdiction pursuant to orders entered on November 26, 2008, and April 23, 2009, in which the juvenile court found them deprived because they had been exposed to domestic violence. The August 2009 contempt order was based on the father’s knowing violation of the court’s orders that he have no contact with the children until he legitimated them and received the court’s permission to visit them, as well as on his conspiring to conceal the children’s location and actively hindering the court’s ability to place the children in protective custody.

The father argued in the previous appeal that the juvenile court was not authorized to consider any harmful inference from his invocation of the Fifth Amendment and his refusal to answer questions about him living with the mother in Florida or about the location of his children. We disagreed, holding that, “in a juvenile court [458]*458proceeding such as this, if a party invokes the 5th Amendment, the trial court may infer that a truthful answer would be harmful.” Further, in addition to any harmful Inferences the juvenile court could draw from the father’s refusal to answer questions about the location of the mother and children, the court also based its contempt order on evidence that the father had recently been living with the mother in Florida in violation of court orders and was providing her with financial assistance, which allowed her to keep the children in Florida.

The finding that the father was in contempt is res judicata. See Rich v. New, 174 Ga. App. 73, 74 (329 SE2d 176) (1985). The father is also bound by the findings that, at the time of the previous unappealed orders, the children were then deprived for the reasons given in the orders, and the trial court in this proceeding properly considered the facts judicially established during the previous deprivation proceedings. In the Interest of J. A., 286 Ga. App. 704, 706-707 (649 SE2d 882) (2007); In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993). We reiterate some of those facts here because they are relevant to whether clear and convincing evidence supports the juvenile court’s October 2011 order finding the children deprived and discontinuing reunification services.1

The father began having sexual relations with the mother when she was fifteen and he was in his mid-forties. She moved in with the father when she was sixteen and four months pregnant. He had never physically abused her before she moved in with him, “just verbally and stuff,” but after she moved in he began choking and hitting her.

By August 2008, the father and mother had two children, ages one and two, who entered shelter care and were temporarily placed in the custody of Cobb County DFCS. The mother had left them with the father after he became physically abusive to her in the car with the children present. She did not remember the children’s reactions then, but they were usually scared and crying when the father became angry at the mother.

After a hearing in November 2008, the juvenile court found that the mother was the children’s only legal parent and had stipulated that they were deprived by exposure to domestic violence. The court placed the children in the mother’s custody, ordered her to live with them at her aunt’s residence, and ordered that the father have no contact with them until he had legitimated them, sought visitation and received court approval. At that time the father was incarcerated [459]*459on charges of child molestation, statutory rape, and aggravated sexual battery against the children’s mother when she was 15.

The juvenile court scheduled a hearing in January 2009 to review the placement and consider the father’s legitimation petition, but the parties agreed to continue it until March 2009. The court then continued the March 2009 hearing because the mother was expecting a third child with the father, a psychologist report on the father had not been completed, and the parties wanted to take each other’s depositions.

After the third child was born on March 18, 2009, DFCS was granted an expedited hearing to determine if she was also deprived, whether the mother had moved from her aunt’s house, and whether the father was violating the previous custody order by having contact with the older two children. In April 2009, the juvenile court issued its order finding the third child deprived, noting that the father chose not to appear at a hearing on March 23, 2009, to consider the deprivation petition, although his counsel had appeared at a separate hearing on his request to depose the mother. The court ordered that the father have no contact with any of the three children until he legitimated them and had sought and received the court’s permission to visit them.

In May 2009, the CASA reported that the mother had called to relay that her relative had put her and the children out, but would not reveal her current location. The mother failed to appear at a hearing on May 12, 2009, and the juvenile court issued an ex parte order immediately placing the children in temporary protective custody with DFCS because the mother and children had moved from the relative’s residence. The court ordered the sheriff to locate the children.

The mother testified that the father told her in June or July 2008 not to take the children to court again because she had lost custody of them. He took her and the children to a small motel somewhere in Georgia and left her there, then eventually took them to live in a motel in Florida. The father stayed with her “off and on” during this time, and she was working as an adult entertainer. He married the mother in Florida on June 26, 2009, because by doing so he automatically legitimated the children, and had their birth certificates amended to reflect that he was their father. He left the children with their mother in Florida and returned to Georgia “a couple of days after the marriage.”

On July 9, 2009, DFCS asked the juvenile court for an expedited hearing to review the children’s placement, having received information that the mother and children were in Florida and the father had been in contact with them. DFCS also moved the court to issue an [460]

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In the Interest of A. S., 734 S.E.2d 225, 318 Ga. App. 457 (Ga. Ct. App. 2012).

734 S.E.2d 225 (In the Interest of A. S.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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