In re CDE, No. A00A1914
| Decision Date | 06 March 2001 |
| Docket Number | No. A00A1995., No. A00A1914 |
| Citation | 248 Ga. App. 756,546 S.E.2d 837 |
| Court | Georgia Court of Appeals |
| Parties | In the Interest of C.D.E. et al., children. In the Interest of S.K.S.-F. |
OPINION TEXT STARTS HERE
David L. Whitman, Sandra D. Hicks, Snellville, for appellants.
Thurbert E. Baker, Atty. Gen., Dennis D. Dunn, Deputy Atty. Gen., William C. Joy, Senior Asst. Atty. Gen., Shalen S. Nelson, Laura W. Hyman, Assistant Attys. Gen., Cheeley & Joyner, John P. Cheeley, Duluth, for appellee. RUFFIN, Judge.
In these two cases, Patricia E. and Deryl E. appeal the juvenile court's order finding that several of their children were deprived and awarding temporary custody of those children to the Gwinnett County Department of Family & Children Services (DFCS). For reasons discussed below, we reverse the judgment in both cases.
In late 1999, Patricia and Deryl were living together with their infant son, D.E. (born July 24, 1999); three of Deryl's children from a prior marriage, S.M.E. (born April 21, 1989), D.C.E. (born December 28, 1988), and C.D.E. (born May 21, 1986); and Patricia's daughter, S.K.S.-F. (born February 20, 1992) (referred to hereafter as S.K.S.). Deryl also had another teenage child, Cl. E., who had previously been placed in DFCS' custody due to severe emotional problems. At the time, Deryl was on probation for convictions for simple battery and obstruction.
In January 2000, Deryl was arrested on a domestic violence charge for pushing Patricia to the ground while she was holding their baby, D.E. On February 14, 2000, DFCS filed deprivation petitions with respect to S.M.E., D.C.E., C.D.E., and S.K.S.,1 alleging that there was domestic violence in the home. Following a hearing on that date, the trial court entered an order temporarily awarding custody of the children to DFCS pending a final deprivation hearing.
The final deprivation hearing was held on February 28, 2000. At the beginning of the hearing, the court was advised that S.K.S.'s father, Derek Franco, had filed a motion to change custody of S.K.S. The court indicated that it would consider the issue of S.K.S.'s deprivation at the hearing, but would not consider the change of custody motion until a later time.
Although Conrey referred to "repeated" and "documented" incidents of domestic violence, it is apparent from her testimony that she had no personal knowledge of any such incidents. Rather, she relied completely on information related to her by others, primarily statements she claims were made by some of the children to unidentified persons at DFCS. Deryl's attorney objected to these statements on hearsay grounds, requesting that the judge interview the children himself, and the judge responded, However, the judge never actually questioned the children regarding the alleged violence, and no evidence of any specific allegations by the children was introduced. Conrey also stated that "there's evidence that [Patricia] maltreats ... `C.D.E.' and `D.C.E.,'" but offered no explanation as to what that evidence might be. Conrey testified that Deryl had completed a court-ordered psychological evaluation, and the psychologist's written report was offered into evidence without objection. The report indicated that it was based on one interview session with Deryl, as well as information about Deryl and his family provided to the psychologist by Conrey. The report offered no conclusions regarding Deryl's ability to properly parent his children, but nevertheless recommended that he "not get his children back at this time." The psychologist who prepared the report did not testify at the hearing.
Patricia testified that, in 1996, she had taken out a warrant against Deryl for simple battery. She did not, however, offer any details regarding the incident. Deryl went to prison for a time,2 and there were no more violent incidents after he was released until late 1999 or early 2000. While Deryl was in prison, Patricia had custody of his children from his earlier marriage.
Patricia testified that her relationship with Deryl deteriorated in late 1999, largely as a result of stress over how to deal with C.D.E., who Patricia said had become sexually active with an older man. By the beginning of December, Patricia and Deryl were arguing "on a regular basis." Patricia testified at the deprivation hearing that, shortly before his January arrest, Deryl had begun to "get physical" with her, such as by biting her head or banging her head against a wall or door frame.3 She said that none of these incidents, however, had resulted in any bruising. She testified that she "told [Deryl] if it ever happened again that it would be the last time." In January, Deryl pushed her to the ground while she was holding their five-month-old child, D.E. It was this incident that caused her to take out a warrant for Deryl's arrest.
Patricia testified that, except for the one incident when she was holding their baby, none of the children ever observed any acts of violence by Deryl. She testified that, after she had their father arrested, the situation with Deryl's children "got way out of control." According to Patricia, they "started threatening me that they were going to have me arrested and call DFACS on me because I had done this to their father." She testified that she and Deryl were no longer living together and had agreed to get a divorce. She promised to abide by any restrictions the court imposed on Deryl having contact with her or her children.
Jane Hudson, a licensed clinical social worker, testified that she had observed Patricia and Deryl and their children on several occasions, as part of a family assessment conducted in connection with Deryl's son Cl. E., who had previously been placed in DFCS' custody. Hudson testified that She said, however, that When asked whom the children were afraid of, she said that the children "expressed indirectly being afraid of [Deryl]." When asked exactly what the children had said or done to give her this impression, she testified that "[d]uring a family session... they said that they wanted to talk about some things in my presence but were concerned that there might be repercussions after the fact." Other than this cryptic reference to a desire to talk about "some things," Hudson offered nothing to support her belief that the children were at times afraid of Deryl.
Hudson testified that she had no concerns about Patricia's ability to parent, although she noted that Deryl's children "have pretty ambivalent feelings" toward her. With regard to Patricia's own children, Hudson said: "Do I have any concerns about Patti's ability to parent [S.K.S.] or [D.E.], no I don't."
DFCS presented no testimony from any of the children and presented no evidence as to how the children were affected by any family violence. It offered no evidence that Deryl had ever abused any of his children and offered no evidence regarding his fitness as a parent.
The court subsequently entered a written order setting forth its ruling. Although the court had orally stated that it would withhold judgment regarding S.K.S., the written order found that all of the children, including S.K.S., were deprived. The order provided that DFCS would retain custody of all the children except the infant, D.E., who was to remain in Patricia's custody provided that she have "absolutely no contact with [Deryl]."
In Case No. A00A1995, Patricia appeals the deprivation order as it relates to S.K.S. In Case No. A00A1914, Deryl appeals the deprivation order as it relates to S.M.E., D.C.E., and C.D.E.
1. In her appeal, Patricia contends that there was insufficient evidence to support the...
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