In the Interest of D. H.

534 S.E.2d 466, 243 Ga. App. 778
CourtCourt of Appeals of Georgia
DecidedMay 3, 2000
DocketA98A1162
StatusPublished
Cited by12 cases

This text of 534 S.E.2d 466 (In the Interest of D. H.) 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 the Interest of D. H., 534 S.E.2d 466, 243 Ga. App. 778 (Ga. Ct. App. 2000).

Opinion

Andrews, Presiding Judge.

T. H. M. appeals from the January 22, 1998 judgment terminating her parental rights to her three children, D. H., J. H., and T. M. That judgment also terminated the parental rights of J. M., the biological father of T. M.1 This case was originally docketed in this Court in the April 1998 term. Both T. H. M. and J. M. were parties to that [779]*779appeal. Pursuant to the motion of the Georgia Department of Human Resources, the appeal was dismissed by opinion of June 22,1998, and the remittitur issued on July 24, 1998.

On June 7, 1999, T. H. M. filed her Notice to Seek Certiorari. By order of October 15, 1999, the Supreme Court granted the writ and remanded the case to this Court for consideration of the merits of T. H. M.’s appeal. The remittitur having been recalled, we now consider the merits of her appeal.

By order of August 30, 1995, D. H. (male, DOB June 25,1988), J. H. (female, DOB December 2, 1990), and T. M. (female, DOB November 8,1994) were found deprived. The following factual findings were the cause for this finding: D. H. and J. H., who were placed in temporary custody of the Department of Family & Children Services on August 7, 1995, reported to a child sexual abuse investigator and to their foster mother that J. M. ejaculated on J. H.’s stomach. D. H. was sent to take a bath by J. M. when this occurred, but he witnessed it. J. H., then four years old, stated that J. M. “tee tee’d white” on her. The children testified repeatedly and consistently to these facts. The children also said that T. H. M. observed the incident and that J. M. made J. H. rub his penis with lotion, which he hid behind the couch when confronted by T. H. M. When confronted by her, J. M. and she fought. T. H. M. then reported her observation to nutritionist Milhous at Norcross Health Clinic, and they filled out a form to report the incident. T. H. M. then changed her mind and left the office with the form. No significant language barrier was noted by Milhous.2 The next day, T. H. M. spoke in her native tongue with a Vietnamese worker at the clinic three separate times by phone and reconfirmed that the abuse occurred. T. H. M. asked this worker for medication for the father’s sexual deviance but was told that the behavior was not a medical condition, but a mental one. J. M. admitted to the investigator that he and his wife left the children at home alone on various occasions.

In that August 1995 order, the parents were ordered to cooperate with DFCS, to obtain and maintain stable employment and living arrangements and to follow any other recommendation made by DFCS, including but not limited to individual and family counseling, anger management for J. M., and parenting and nurturing skills classes. They were also ordered to keep DFCS informed of a current address and phone number. T. H. M. was ordered to find a duly qualified Vietnamese-speaking psychiatrist with whom to begin counsel[780]*780ing, and all parties were to agree on a child sexual abuse counselor for J. M. Both parents were to sign releases allowing DFCS to obtain information from their counselors. J. M. was to have no contact with D. H. and J. H.

J. M. was evaluated in November 1995 and March 1996 by Dr. Abel who determined that the psychophysiological assessment of J. M.’s sexual interests revealed that he was responsive to slides of three- and four-year-old females. J. M. was also found to have failed a polygraph examination regarding any sexual activity with his children and his attraction to a child under the age of 15.

T. H. M. was evaluated by Dr. Runo in February 1996, reflected in his report of March 11, 1996. Dr. Runo found her to be very dependent on J. M. and fearful of losing that support and security. It was again recommended that she undergo individual therapy.

On at least two occasions in 1996, despite the court’s order, J. M. attempted to have contact with D. H. and J. H., once by going to their school, and once by barging into the DFCS facility when T. H. M. was going to meet with the children. On that occasion, J. M. pushed past the caseworker and the foster mother, who was holding T. M. in her arms, went into the room with J. H., tried to shut the door, and touched her on the arm before the caseworker could get him out.

In January 1997, as a result of having left the children alone for a period of time without parental care and control, one of the reasons for the finding of deprivation, J. M. and T. H. M. pled guilty to three counts each of misdemeanor contributing to the deprivation of a minor and were sentenced to probation for three years.3

Additionally, in January 1997, J. M. pled guilty to sexually assaulting a minor, a female employee of his pizza restaurant. Previously, while in the Army, J. M. had been demoted for masturbating in front of a female soldier.

The termination hearing began on August 25, 1997, pursuant to the petition filed by DFCS in February 1997. At the conclusion of that hearing, the parents requested a continuation of the matter for four to six months to see if there was any feasible way to reunify T. H. M. with her children. Counsel for T. H. M. advised the court that J. M. and she had separated, although no decision had been made on the permanency of the separation. The hearing was suspended under the following provisions, applicable to T. H. M.:

1. The mother and father shall live separate and apart from [781]*781each other and have no absolutely no contact between them; ... 3. The mother, [D. H.] and [J. H.] shall attend family therapy with Dr. Bush every other week; 4. The mother shall attend weekly individual therapy at the parents’ expense; 5. The mother shall obtain and maintain stable living arrangements and employment sufficient to support the children; 6. Visitation between the mother and the children shall occur twice per month at the Department; ... 9. The parents shall attend all therapy and counseling sessions, actively participate in same, follow the recommendations of their therapists and counselors and release all information to all parties.

On September 2, 1997, counsel for T. H. M. sent her a letter giving her the name of a Vietnamese-speaking counselor who had been located by the caseworker. The letter directed her to contact the counselor and begin her therapy. The letter also instructed her “not to have any contact at all with [J. M.] If the Judge finds out that you have seen him or talked to him at all then we will be brought back into court and she will terminate your parental rights. There are no second chances and no excuses.” The letter was copied to T. H. M.’s Vietnamese interpreter who was asked to contact T. H. M. and read the letter to her in Vietnamese.

The hearing was resumed on October 7, 1997. During that hearing, DFCS presented evidence that, despite the previous court order and her agreement to live separately from J. M., T. H. M. had been cohabiting with him. A private investigator documented that both parents’ cars were at T. H. M.’s apartment, backed into parking spaces so that their license tags were obscured, on September 11, 16, 23, 24, and 29. The investigator also videotaped J. M. leaving the apartment the evening before the investigator testified. On September 25, during her visitation with the children, T. H. M. was asked by Crawford, her caseworker, if she had had contact with J. M., and she denied any.

Dr. Bush, a child psychologist, had previously treated D. H. and J. H.

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Bluebook (online)
534 S.E.2d 466, 243 Ga. App. 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-d-h-gactapp-2000.