B.H., In Interest of, 77707

• Decision Date: 31 January 1989
• Docket Number: No. 77707,77707
• Citation: 378 S.E.2d 175,190 Ga.App. 131
• Parties: In the Interest of B.H.
• Court: Georgia Court of Appeals

Page 175

378 S.E.2d 175

190 Ga.App. 131

In the Interest of B.H.

No. 77707.

Court of Appeals of Georgia.

Jan. 31, 1989.

Arthur L. Phillips, Macon, for appellant.

Philip B. Spivey, Michael J. Bowers, Atty. Gen., Carol A. Cosgrove, Sr. Asst. Atty. Gen., for appellee.

SOGNIER, Judge.

The Georgia Department of Human Resources, acting through the local Department of Family and Children's Services (DFCS), filed a petition in the Juvenile Court of Jones County seeking temporary custody of B.H., alleging that the father had sexually abused the child, who was therefore a deprived child within the contemplation of OCGA § 15-11-2(8). The juvenile court granted temporary custody to DFCS, and both parents bring this appeal.

The record reveals that at the hearing, Sheila Coleman, director of the day care center attended by B.H., testified that B.H., a two and one-half-year-old girl, described how her father had sexually molested her with his teeth and tongue. Shirley Hutchings, a caseworker with Jones County DFCS, testified that she spoke with B.H. at the day care center and B.H. repeated her allegation. Hutchings testified that B.H. told her her father had hurt her that way more than once, and that although Hutchings had asked her if anyone else had done this to her, B.H. insisted that only her father had done so. Hutchings stated that she confronted the mother with the child's allegation, and the mother refused to believe that the father had molested the child. The father denied it, and the child thereafter would not repeat her allegations. Hutchings testified that she firmly believed the father had molested the child, and consequently could not allow the child to remain in the parental home unless the mother would give some indication that she believed the abuse occurred and agree to protect the child by removing the father from the home. The mother refused to do so, and the child was therefore placed with the maternal grandmother, where she remains.

In a psychological evaluation of B.H. by Dr. Donald Meck, which was read into the record by counsel for the parents, Dr. Meck stated that he could not get B.H. to talk about the alleged abuse, but that he administered the Sex Abuse Legitimacy Scale, which suggested that B.H.'s allegation had been somewhat fabricated.

DFCS then made an offer of proof consisting of the testimony of Diane Millions, a fourteen-year-old girl who allegedly had been raped by B.H.'s father. The court found this to be similar to the alleged act of abuse of B.H., and admitted the testimony over objection. Millions testified that her mother worked for an ambulance service in Wilkinson County for which B.H.'s father also worked. She testified that B.H.'s father, after offering to take her home, turned the car off the road onto an isolated dirt road where he forced her to perform sodomy on him and raped her.

The father denied he had raped Millions, but admitted he had been suspended from his job as an EMT and had been charged in Wilkinson County in relation to Millions' allegation. The parents both denied any wrongdoing as to B.H., and Wayne Avery, the father's uncle and a Macon Police detective, testified that he had been at the home of the parents often, and had never seen any sign of deviant conduct on the part of the father. The parents made an offer of proof of testimony from the grandparents that the parents are of good character and that the father had never behaved inappropriately toward B.H. in their presence, which the court accepted as proven. Accepted as well was the fact that B.H. loved her father and wanted to go home.

The trial court found that B.H. was deprived, gave temporary custody to DFCS subject to the requirement that it report to the court in eight months, and found that it was in B.H.'s best interest that placement remain with the maternal grandmother.

1. Appellants first enumerate the general grounds, specifically contending there was no evidence on which the trial court could base an order depriving the mother of custody. We do not agree. The trial court found that there was "clear and convincing evidence that [the father] sexually abused [B.H.] as alleged in the petition," that it would be contrary to the welfare of the child for her to be in the parental home, and that "reasonable efforts have been made to prevent or eliminate the need for removal and to make it possible for the child to return home." Thus, the reason the mother was deprived of custody was her refusal to protect the child by even considering the possibility that the father could have abused the child and her consequent unwillingness to remove the child from the danger presented by living with the father. The juvenile court's primary responsibility is to consider and protect the welfare of children whose well-being is threatened. OCGA § 15-11-1(1). This is so regardless of specific fault on the part of the mother. See generally Gardner v. Lenon, 154 Ga.App. 748, 749-750, 270 S.E.2d 36 (1980). Accordingly, in this instance, after finding there was clear and convincing evidence the father had molested B.H., the trial court did not abuse its discretion by considering the evidence and deciding it had no choice but to protect the child by removing custody from the mother as well. See generally In re D.C., 176 Ga.App. 30, 335 S.E.2d 148 (1985).

2. Appellants next contend the trial court erred by admitting the hearsay testimony of Coleman and Hutchings about what B.H. told them, because it had no probative value and because B.H., although present, was not called by the court for a determination of her competency. We find no merit in this contention. OCGA § 24-3-16 provides that "[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability." By its terms, this statute allows the burden of proof to be satisfied under certain circumstances "by introducing...