In the Interest Of: T. S.

• Court: Court of Appeals of Georgia
• Decided: September 25, 2012
• Docket: A12A1324
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.

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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

September 25, 2012

In the Court of Appeals of Georgia A12A1324. IN THE INTEREST OF T. S., a child.

BARNES, Presiding Judge.

The mother of T.S. appeals a juvenile court order finding T.S. deprived,

arguing, among other things, that her due process right to confrontation was violated

because she was excluded from the courtroom while T.S. testified and could not assist

her counsel in developing questions to ask T.S. on cross-examination. Because the

juvenile court erred in dismissing the mother from the courtroom without an

evidentiary finding of necessity and without providing her with the means to listen

to the testimony and assist her lawyer, we must reverse and remand for a new hearing.

1. The mother argues that her due process right to confrontation was violated

because she was not allowed to remain in the courtroom while T. S. testified. A parent is a party to deprivation or termination of parental rights proceedings

involving her child, and has a right to due process during those proceedings. In the

Interest of A. J., 269 Ga. App. 580, 581 (1) (604 SE2d 635) (2004). Due process

affords the parent a right to confront witnesses, In the Interest of C.W.D., 232 Ga.

App. 200 (501 SE2d 232) (1998), a right which “really means the right to ask

questions and secure answers from the witness confronted.” Lingerfelt v. State, 235

Ga. 139, 140 (218 SE2d 752) (1975) (defining Sixth Amendment right to

confrontation). Further, the “main and essential purpose of confrontation is to secure

the opportunity of cross-examination.” Denson v. State, 150 Ga. 618, 622 (4) (104 SE

780) (1924). A parent alleging that her due process right to confrontation was

violated must show harm as well as error. In the Interest of M.H.W., 275 Ga. App.

586, 590 (1) (621 SE2d 779) (2005).

In this case, after the State rested, T.S.’s attorney called her to testify, provided

that she be permitted to testify in camera. The mother objected to having T.S. testify

in camera, arguing that she had a right to confront T.S. and needed to be present to

help her attorney prepare questions for cross-examination. Without making any

findings about the necessity of exclusion, the juvenile court overruled the objection

and asked the mother and a case manager to step out of the courtroom. The mother’s

2 attorney perfected her objection, which the juvenile court again overruled, noting that

the mother had the right to call T.S. for cross-examination.

T.S. then read a prepared statement and answered questions from her attorney,

the court and DFCS’s attorney. T.S.’s attorney rested. The mother returned to the

courtroom and moved to dismiss the petition on the ground that insufficient evidence

supported the allegation of deprivation. The juvenile court denied the motion, and the

mother called T.S. for cross-examination, then called additional witnesses.

Effective confrontation does not necessarily require a face-to-face

confrontation. In the Interest of B.H., 295 Ga. App. 297, 301 (5) (671 SE2d 303)

(2008). If the trial court finds that testifying in the physical presence of a parent

would cause a child trauma and excludes the parent from the proceedings, the

parent’s due process rights are protected if she can listen to the child’s testimony and

contemporaneously consult with her attorney to assist in propounding questions for

cross-examination. Id. (no due process violation when excluded parent watched

child’s testimony via closed-circuit television and was provided with a runner to take

notes to the parent’s lawyer). See also In the Interest of M.H.W., 275 Ga. App. 586,

590 (1) (621 SE2d 779) (2005) (no harm in requiring father to continue cross-

examination of mother by telephone); In the Interest of C.W.D., 232 Ga. App. 200,

3 209-210 (5) (501 SE2d 232) (1998) (children testified and were cross-examined via

closed-circuit television after juvenile court determined that making them testify in

mother’s presence would be detrimental to their health).

On the other hand, we have reversed and remanded cases in which a parent was

excluded from the courtroom during her child’s testimony, absent a showing that

exclusion was necessary and that the parent was given a means to consult with her

lawyer while listening to the child’s testimony. See In the Interest of M.S., 178 Ga.

App. 380, 381 (343 SE2d 152) (1986) (termination order reversed because parent was

excluded even from observing child’s testimony through a one-way mirror); In the

Interest of B.G., 225 Ga. App. 492, 494 (1) (484 SE2d 293) (1997) (due process

violation was not harmless when parent excluded from courtroom and given no means

to listen to child’s testimony and contemporaneously consult with lawyer).

If a parent cannot hear her child’s testimony in a deprivation or termination of

parental rights proceeding, she cannot assist her lawyer in developing the child’s

cross-examination and her due process right to confrontation is limited. In this case,

“the trial court erred in excluding the mother from the courtroom without a showing

of necessity and without using procedures which would accommodate her ability to

hear the testimony and consult with her attorney.” In the Interest of B.G., 225 Ga.

4 App. at 494 (1). The error was harmful because the mother was unable to assist her

attorney in developing questions for the cross-examination of the child. Id.

2. Our holding in Division 1 renders moot the mother’s remaining

enumerations of error.

Judgment reversed and case remanded for new hearing. Adams and

McFadden, JJ., concur.