In re Interest of B.G.

• Decision Date: 14 March 2018
• Docket Number: A17A1737, A17A1738
• Citation: 812 S.E.2d 552
• Parties: IN the INTEREST OF B.G., a child (two cases).
• Court: Georgia Court of Appeals

345 Ga.App. 167

812 S.E.2d 552

IN the INTEREST OF B.G., a child (two cases).

A17A1737, A17A1738

Court of Appeals of Georgia.

March 14, 2018

Fakiha Khan, for Appellant (Case No. A17A1737).

Debra Walls Hale, Lawrenceville, for Appellant (Case No. A17A1738).

Calandra Almond Harps, Christopher Michael Carr, Atlanta, Victoria L. Wallace, Anoopa Munavalli Laurens, Shalen S. Nelson, for Appellee.

McFadden, Presiding Judge.

These related appeals arise from a dependency proceeding involving B.G., who is now 15 years old. His aunt and uncle are his legal custodians. In 2015, B.G. was removed from their custody and adjudicated dependent based on allegations that the aunt had physically abused him. In these related cases, the uncle (in Case No. A17A1737) and the aunt (in Case No. A17A1738) appeal from the juvenile court’s order granting a motion for nonreunification filed by the Gwinnett County Department of Family and Children Services

(DFCS). They both argue that the evidence was insufficient to support the juvenile court’s ruling that reunification would be detrimental to B.G. The nonreunification order, however, does not set forth the juvenile court’s findings of facts, separate from the conclusions of law, in a manner that would permit us to make an intelligent review of the merits of the challenges to the sufficiency of the evidence. Moreover, the order contains some factual misstatements and it reflects that some of the grounds for the juvenile court’s decision are legally erroneous. We therefore vacate the reunification order and remand both cases for further proceedings not inconsistent with this opinion.

1. Inadequacy of findings of fact.

An order entered following a hearing in a dependency proceeding "[s]hall include findings of fact[.]" OCGA § 15–11–111 (b) (2). Such findings of fact "should be made in accordance with OCGA § 9–11–52 (a)," In the Interest of D.L.G. , 212 Ga. App. 353 (1), 442 S.E.2d 11 (1994) (citations and punctuation omitted) (regarding order in deprivation proceeding under former juvenile code), which provides that a court must "find the facts specially and ... state separately its conclusions of law." OCGA § 9–11–52 (a) (emphasis supplied). Thus, "the facts must be found specially; and the conclusions of law must be stated separately, regardless of whether the order otherwise is sufficient for purposes of review." Coley v. Coley , 169 Ga. App. 426, 428 (2), 313 S.E.2d 129 (1984)(citation and punctuation omitted); see In the Interest ofD.S. , 212 Ga. App. 203, 204, 441 S.E.2d 412 (1994), overruled in part on other grounds, In the Interest of J.P. , 267 Ga. 492, 493, 480 S.E.2d 8 (1997).

The juvenile court’s nonreunification order does not comply with these requirements. The first 18 pages of the order amount to a recitation of what happened at the hearing on the nonreunification hearing—the juvenile court states who was present, identifies prior rulings that are incorporated into the order, describes the exhibits admitted into evidence, and then sets forth in detail the testimony of each hearing witness. The juvenile court, however, does not indicate what findings of fact he made from this hearing evidence, so these first 18 pages of the order cannot be construed as the juvenile court’s findings of fact. The findings of fact "are not intended to amount to a brief of the evidence," Coley , 169 Ga. App. at 428 (2), 313 S.E.2d 129, and "[a] mere recitation of the events that took place at the trial does not satisfy the requirements of OCGA § 9–11–52 (a)." In the Interest of J.B. , 241 Ga. App. 679, 680 (1), 527 S.E.2d 275 (1999) (citation omitted); In the Interest of D.L.G. , 212 Ga. App. at 353 (1), 442 S.E.2d 11 (citation and punctuation omitted).

After the above-described recitation, the nonreunification order states a ruling in which the juvenile court, among other things, grants DFCS’s nonreunification motion. The juvenile court then proceeds to describe in the order the reasoning for his ruling, but in doing so he intermingles findings of fact and conclusions of law rather than stating them separately as required by OCGA § 9–11–52 (a).

The failure of the juvenile court to "find the facts specially and ... state separately its conclusions of law," OCGA § 9–11–52 (a), prevents us, in this case, from making an intelligent review of the aunt’s and uncle’s challenges to the sufficiency of the hearing evidence. See generally In the Interest of D.S. , 212 Ga. App. at 204, 441 S.E.2d 412 ("The findings of fact required to be recited in [dependency] cases ... enable an appellate court to more adequately and promptly review the judgment.") (citations, punctuation, and emphasis omitted). Our Supreme Court, in Hughes v. State , 296 Ga. 744, 746 (1), 770 S.E.2d 636 (2015), explained that where "the trial court has made express findings of disputed facts ... an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court." (citations and footnotes omitted). While Hughes concerned a trial court ruling on a motion to suppress, our Supreme Court has applied that decision’s rationale to other types of cases involving rulings made by trial courts sitting as finders of fact, including a case involving child custody. See Strickland v. Strickland , 298 Ga. 630, 634 (1) n. 6, 783 S.E.2d 606 (2016). But because the order in this case sets out all of the evidence and then intermingles findings of facts and conclusions of law, we cannot discern the scope of the juvenile court’s factual findings. It is not clear from the order whether the juvenile court only found those facts contained within the court’s conclusions, or whether the court’s findings of fact include some or all of the facts set forth in the detailed, 18–page synopsis of the evidence.

Left uncertain on this point, we must remand. See Hughes , 296 Ga. at 746 (1) n. 6, 770 S.E.2d 636 ("If the trial court has made express findings of fact, but not with sufficient detail to permit meaningful appellate review, an appellate court may remand for further findings.") (citation omitted). See also In the Interest of D.S. , 212 Ga. App. at 205, 441 S.E.2d 412 ("We have repeatedly said that we will not cull the record to find error for an appellant; the same goes for review of an order [in a dependency proceeding,] which is required by law to contain specific findings of fact[.]"). We therefore vacate the nonreunification ruling and remand these cases with direction that the juvenile court prepare appropriate findings of fact and enter a new judgment, after which another appeal may be made. See In the Interest of J.B. , 241 Ga. App. at 681 (1), 527 S.E.2d 275 ; In the Interest of D.L.G. , 212 Ga. App. at 353 (1), 442 S.E.2d 11.

2. Errors reflected in nonreunification order.

Given our decision to vacate the nonreunification order, we do not examine the merits of the aunt’s and uncle’s challenges to the sufficiency of the evidence supporting that order. See In the Interest of J.B. , 241 Ga. App. at 681 (2), 527 S.E.2d 275 ; In the Interest of D.L.G. , 212 Ga. App. at 354 (2), 442 S.E.2d 11. Nevertheless, we note that the order contains legal errors and erroneous misstatements of fact that should be corrected on remand, whether or not they would have amounted to reversible error had the order otherwise complied with OCGA § 9–11–52 (a). Compare In the Interest of A.M. , 306 Ga. App. 358, 364 (5), 702 S.E.2d 686 (2010) (nonreunification ruling must be vacated where no evidence supported one of juvenile court’s findings and the "erroneous finding was sufficient to have influenced the [juvenile] court’s decision to terminate reunification efforts") with In the Interest of S.C.S. , 336 Ga. App. 236, 246 (1) (b), 784 S.E.2d 83 (2016) (misstatement in finding of fact in dependency order not reversible error unless shown to be harmful). We address those errors below.

(a) Procedural deficiencies pertaining to the uncle.

The record reflects multiple procedural deficiencies in connection with the initial adjudication of B.G. as dependent as to the uncle. Although the state argues on appeal that the uncle has not properly preserved his arguments regarding these deficiencies, they affect the juvenile court’s nonreunification order in at least two respects that we may address on appeal. First, and most fundamentally, the order adjudicating B.G. dependent is void as to the uncle because the uncle was denied his due process right to counsel at the preliminary protective hearing that resulted in that order. Second, given the procedural deficiencies, the juvenile court erred in treating the uncle’s purported failure to timely assert his custodial rights in B.G. as evidence supporting the nonreunification ruling.

(i) Law and background pertaining to procedural deficiencies in this case.

As one of B.G.’s legal custodians, the uncle was a party to the dependency proceeding, see OCGA § 15–11–2 (52) (defining "party" to include child’s legal custodian), and therefore had due process rights in connection with that proceeding. As a party to a dependency proceeding, the uncle also had "the right to an attorney at all stages of the proceedings[,]" OCGA § 15–11–103 (a), and he was entitled to be "informed of his ... right to an attorney prior to any hearing." OCGA § 15–11–103 (g). He also had "the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records, and to appeal the orders of the court." OCGA § 15–11–19 (a). The juvenile court was required to advise the uncle of these rights at the uncle’s first appearance before the court. OCGA § 15–11–19 (b).

The order adjudicating B.G. dependent arose from a preliminary protective hearing that occurred on June 11, 2015. (The order was issued February 16, 2016, nunc pro tunc to June 11, 2015.) The uncle was entitled to notice of that hearing, OCGA § 15–11–145 (b), and he was entitled to participate in it....