In THE INTEREST OF B. L., CHILDREN (FATHER)

• Court: Court of Appeals of Georgia
• Decided: May 24, 2023
• Docket: A23A0008
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., DOYLE, P. J., and LAND, J.

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. https://www.gaappeals.us/rules

May 24, 2023

In the Court of Appeals of Georgia A23A0008. IN THE INTEREST OF B. L., et al., CHILDREN (FATHER).

DOYLE, Presiding Judge.

Richard Liberty, the father of B. L. and E. L., appeals from the trial court’s

order awarding primary physical custody to the children’s mother, contending that the

trial court erred by (1) failing to give his testimony the presumption of truth, (2)

excluding prior consistent statements he made, (3) refusing to award him custody, and

(4) awarding custody to the children’s mother because there was no substantial

change in circumstances to justify such an award. For the reasons that follow, we

affirm the trial court’s ruling.

“When considering a ruling on a material change in circumstances, this Court

views the evidence in the record in the light most favorable to the trial court’s order and will affirm the trial court’s decision if there is any evidence to support it.”1 So

viewed, the record shows that the parties, who were never married, are the parents of

twin boys B. L. and E. L., who were born in 2015. The parties’ relationship has been

acrimonious from the start, and each has alleged various forms of misconduct by the

other. In 2020, the superior court entered a consent order on legitimation, custody,

and child support, which, as relevant to this appeal, granted the father’s petition for

legitimation, awarded the parties joint custody with equal parenting time, and directed

that neither party would pay child support to the other. In April 2021, the father filed

a pro se motion for emergency hearing, alleging that E. L. had disclosed sexual abuse

by the mother’s live-in boyfriend and asking the court to suspend the mother’s

custody time until police completed their investigation of the abuse allegation. After

a hearing, the superior court entered an emergency order temporarily modifying the

parties’ custody arrangement to give the father physical custody of the children at all

times except on Saturdays from 8:00 a.m. to 8:00 p.m., when the mother would have

parenting time.

1 (Citation and punctuation omitted.) Burnham v. Burnham, 357 Ga. App. 580 (851 SE2d 202) (2020).

2 In June 2021, the father filed a motion for permanent full custody, alleging that

the mother had neglected the children and had engaged in drug abuse, prostitution,

and sexual misconduct. The mother filed a counterclaim seeking primary custody

herself, alleging that since the consent order was entered in September 2020, there

had been a change in circumstances — namely, the father had engaged in a pattern

of harassment and domestic violence and had made allegations with no factual basis

in an effort to gain primary custody of the children. In August 2021, the superior

court entered another temporary order awarding the father primary physical custody,

with the mother having visitation every other Saturday and Sunday. The court also

transferred the case to the juvenile court, which appointed a guardian ad litem.

After an unsuccessful attempt at mediation, the case came before the juvenile

court for a final hearing in May 2022. The father appeared pro se, and his attempts

to testify that E. L. had been abused were met with repeated objections from the

mother’s attorney, which the juvenile court sustained. First, when the father testified

that an administrator at the children’s preschool told him E. L. had made a disclosure

of sexual abuse, the mother’s attorney objected on hearsay grounds and the court

sustained the objection. The father then attempted to play a recording on his phone,

presumably of E. L. disclosing abuse, and the court stated that he could play the

3 recording only if he could “verify” it. Next, the father testified that the reason the

parties changed from split custody to him having full custody was that “there was a

sexual assault on my child.” The juvenile court again sustained the mother’s

objection, explaining, “you have to have either a doctor . . . that examined the kid and

said this happened, or if you had a police record . . . or something of that nature, that’s

what I would need. You can’t tell me somebody else told me this.” The father

responded that he had a letter from the child’s counselor stating that E. L. had

disclosed abuse, and the trial court advised that either the counselor or the child

would need to testify for the letter to be admitted as evidence.

On cross-examination, the mother elicited the following testimony from the

father: after E. L. made an outcry, the father contacted police and filed an emergency

motion for custody ; during E. L.’s first forensic evaluation, the child did not disclose

any abuse ; the father refused to accept the police department’s conclusion that the

allegations were unfounded, and he repeatedly asked police to conduct a second

investigation ; and, at the father’s insistence, officers eventually did conduct a second

investigation. The father testified that he was never advised of the results of the

second investigation, but the mother and guardian ad litem testified that officers again

determined that the allegations of sexual abuse were unfounded and that, based on the

4 second investigation, officers were concerned the child had been coached. The

mother also testified that she had ended her relationship with the alleged perpetrator

and that no charges were ever brought against him.

The guardian ad litem reported that based on her investigation, both parties had

engaged in “troubling” behavior and neither party had established that a change in

custody was warranted. The father had asked for a change of custody because the

mother was engaging in drug abuse, prostitution, and sexual misconduct, but he

provided no evidence establishing that the mother was currently engaged in such

behaviors. Similarly, the mother had asked for a change of custody based on the

father’s pattern of harassment and domestic violence, but the guardian ad litem found

no current evidence in support of those claims. As to the allegations of sexual assault,

the guardian ad litem noted that “because of the alleged coaching” by the father, it

would be impossible to determine whether E. L. was actually abused.

At the conclusion of the hearing, the juvenile court expressly found that the

father lacked credibility because the evidence showed that he had coached the

children with respect to the allegations of sexual abuse and because he claimed not

to know the results of the second police investigation even though it was completed

at his insistence. In its final order, the juvenile court expressly found that the father

5 had coached the child regarding sexual abuse allegations in an attempt to gain

primary custody of the children, refused to accept the findings of the police

department’s investigations, and acted in a manner that jeopardized the investigations.

The court concluded that these actions constituted a material change in circumstances

and that it was in the best interest of the children for the mother to be awarded

primary physical custody. After the court entered its final order, the father filed this

appeal.

1. The father contends that the trial court erred by failing to give his testimony

the presumption of truth. He focuses on the court’s statement at the end of the

hearing, “They’re going to go with [the mother]. That’s what happens when you lie

to the [c]ourt[,]” and argues that there was no evidence to support the trial court’s

conclusion that he had lied to the court. His argument is unavailing.

It is axiomatic that issues of witness credibility are for the trial court to

resolve.2 And in this case, the trial court explained precisely why it had concluded

2 See Hooper v. Townsend, 362 Ga. App. 532, 541 (12) (868 SE2d 286) (2022) (On appeal from an order modifying child custody, “[w]e are mindful that the Solomonic task of assigning the custody of children lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.”) (citation and punctuation omitted).

6 that the father was not credible, noting that there was evidence the father had coached

the children regarding the allegations of sexual assault and that he denied knowing

the result of the second investigation after insisting that it be completed. Because

there was some evidence to support the court’s finding, we will not disturb it on

appeal.3

2. Next, the father contends that the trial court erred by limiting his attempts

to present evidence relating to E. L.’s claims of sexual assault. In a related claim of

error, the father contends that the trial court’s erroneous evidentiary rulings led the

court to wrongly conclude that he failed to establish that a change in custody was

warranted. “The admission of evidence lies within the sound discretion of the trial

court[,]”4 and we discern no abuse of discretion in this case.

(a) The father contends, first, that he should have been permitted to testify

that E. L. made outcries of sexual abuse. He argues that because he testified on those

issues at the emergency hearing, his testimony at the final hearing would be

nonhearsay under the prior consistent statement exclusion.

3 See id. at 542 (12). 4 (Citation and punctuation omitted.) Ahmed v. Clark, 301 Ga. App. 426, 429 (688 SE2d 361) (2009).

7 Hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.”5 Our rules of evidence provide that “[a]n out-of-court statement shall not

be hearsay if the declarant testifies at the trial or hearing, is subject to

cross-examination concerning the statement, and the statement is admissible as a prior

inconsistent statement or a prior consistent statement under [OCGA §] 24-6-613[.]”6

Here, the father was attempting to introduce out-of-court statements made by

other individuals as proof that the facts asserted in those statements were true — for

example, the father attempted to introduce evidence that a preschool administrator

told him E. L. made an outcry at school as proof that E. L. had been sexually abused.

The declarants in this situation are the preschool administrator and E. L. — not the

father — and neither the administrator nor E. L. testified at the final hearing.

Consequently, this does not fall within the prior consistent statement exclusion to the

hearsay rule.7

5 OCGA § 24-8-801 (c). 6 (Emphasis supplied.) OCGA § 24-8-801 (a) (1) (A). 7 This evidence also would not be admissible under the Child Hearsay Statute because, by its terms, that provision only applies when the child “testifies at the trial, unless the adverse party forfeits or waives such child’s testimony[.]” See OCGA § 24-

8 Moreover, to the extent the father may have sought to introduce statements for

which he could be considered the declarant, they would not constitute prior consistent

statements because that doctrine only applies to statements a witness made before his

motive to fabricate came into existence.8 The parties were engaged in an acrimonious

custody dispute before the father testified at the emergency hearing — indeed, they

were engaged in a custody battle before E. L. made an outcry of sexual abuse.

Therefore, statements the father made at the emergency hearing do not fall within the

prior consistent statement exclusion to the hearsay rule.

(b) The father contends, second, that he should have been permitted to play

a recording he took on his cellphone in which E. L. purportedly disclosed sexual

abuse. The record reveals that at the final hearing, the father attempted to play “a

recording on [his] phone from [his] child.” The trial court told the father that he could

introduce the recording only if he could “verify” it. The court’s statement was

consistent with Georgia law requiring a proponent to lay a proper foundation for any

8-820 (a). 8 See Cash v. State, 294 Ga. App. 741, 744-745 (669 SE2d 731) (2008).

9 evidence he seeks to enter.9 The father, however, made no further attempt to

authenticate the recording. Crucially, he did not proffer any information as to the

accuracy or completeness of the recording, and he does not contend that the minimal

information he provided about the recording was sufficient to allow its admission.

Under these circumstances, we discern no abuse of discretion in the trial court’s

ruling. Additionally, because the trial court did not abuse its discretion with respect

to admission of evidence, we reject the father’s contention that the court’s erroneous

evidentiary rulings led it to wrongly conclude that he failed to establish a material

change in circumstances.10

3. Finally, the father contends that the trial court erred in concluding that the

mother carried her burden of establishing that there was a material change in

condition such that a change in custody was warranted.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting

9 See OCGA § 24-9-901 (a) (authentication is a condition precedent to the admission of evidence; proponent must establish that an item is what he claims it to be). 10 See Brazil v. Williams, 359 Ga. App. 487, 490-491 (1) (b) (859 SE2d 490) (2021) (because there was evidence to support trial court’s finding that there was no material change in circumstances, the court did not abuse its discretion in making that finding).

10 the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. A determination that there has been a material change in condition supporting a modification of custody will be affirmed absent an abuse of discretion, and where there is any evidence to support the trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.11

The father argues primarily that the guardian ad litem investigated the

allegations raised by both parties and concluded that while both parents had engaged

in bad behavior, neither had provided evidence to substantiate the allegations they

raised against the other. Thus, the guardian ad litem recommended that the parties

return to the custody arrangements set forth in their October 2020 consent order. The

trial court, however, was not required to follow the guardian ad litem’s

recommendation.12 And under the facts of this case, including evidence that the father

coached E. L. as to the allegations of sexual abuse, which led to the mother’s

parenting time being reduced while investigations were pending, we see no abuse of

11 (Citations and punctuation omitted.) Park-Poaps v. Poaps, 351 Ga. App. 856, 861 (2) (833 SE2d 554) (2019). 12 See King v. King, 284 Ga. 364, 365 (667 SE2d 30) (2008) (“[T]he recommendations of the guardian ad litem are not a substitute for the trial court’s independent discretion and judgment.”) (citation and punctuation omitted).

11 discretion in the trial court’s conclusion that there was a material change in

circumstances affecting the children’s welfare. Further, the juvenile court did not

abuse its discretion in concluding that an award of primary physical custody to the

mother was in the best interest of the children.13

Judgment affirmed. Barnes, P. J., and Land, J., concur.

13 See id. (where the mother’s handling of sexual abuse allegations had a negative effect on the child’s relationship with her father, the trial court did not err in concluding that an award of primary physical custody to the father was in the child’s best interest).