In re N.S.E.

• Decision Date: 09 August 2007
• Docket Number: No. A07A1662.,A07A1662.
• Citation: 651 S.E.2d 123,287 Ga. App. 186
• Parties: In the Interest of N.S.E. et al., children.
• Court: Georgia Court of Appeals

287 Ga. App. 186

651 S.E.2d 123

In the Interest of N.S.E. et al., children.

No. A07A1662.

Court of Appeals of Georgia.

August 9, 2007.

Franklin & Hubbard, Curtis L. Hubbard, Jr., Atlanta, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, P. Brian Campbell, Elizabeth M. Williamson, Assistant Attorneys General, for appellee.

BERNES, Judge.

The mother of N.S.E. and G.A.E. appeals the juvenile court's order terminating her parental rights. The mother challenges the sufficiency of the evidence supporting the termination of her parental rights and contends the juvenile court erred by not placing the children with a relative. For the reasons discussed below, we affirm.

In considering the mother's appeal, we view the evidence in the light most favorable to the juvenile court's disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the mother's right to custody should have been terminated. We neither weigh the evidence nor determine the credibility of any witnesses, but instead defer to the juvenile court's findings of fact.

(Citation omitted.) In the Interest of K.N., 272 Ga.App. 45, 611 S.E.2d 713 (2005).

So viewed, the record shows that in the spring of 2004, the mother lived with her husband and their three minor children N.S.E., G.A.E., and E.E. in an apartment in DeKalb County. N.S.E. was two years old, G.A.E. was one year old, and E.E. was four months old. In the early morning of April 27, 2004, the mother called 911 because E.E. was unconscious and bleeding from the nose. The parents' efforts at CPR, which they had attempted by themselves for four hours, had been unsuccessful in reviving the infant.

Upon arriving at the scene, emergency medical personnel found E.E. nonresponsive with injuries to his chest area and immediately transported him to the hospital emergency department. A detective who arrived at the scene shortly thereafter observed that N.S.E. and G.A.E. had marks on them accompanied with bruising and redness. Like E.E., they were taken to the emergency department for evaluation.

E.E. died shortly after arriving at the hospital. Observations made by a forensic pediatrician prior to E.E.'s death and in a subsequent autopsy revealed that E.E. exhibited bleeding in the upper inner eyelids; missing skin layers on the chest area; looped cord marks on his chest, back, and buttocks indicative of a looped object striking the infant; and parallel lines on the infant's left side suggestive of an un-looped cord injury. X-rays showed that E.E. had a total of fifteen separate broken bones in various stages of healing, including nine broken ribs and fractures in the left foot, left hand, and thigh bone. Finally, a CAT scan and the autopsy showed that E.E. had suffered an intercranial trauma which resulted in internal contusions to the scalp and brain, brain swelling, and internal hemorrhaging. The forensic pediatrician and medical examiner who performed the autopsy concluded that these injuries were nonaccidental and resulted from severe physical abuse occurring over a period of time. The medical examiner further concluded that the cause of E.E.'s death was homicide resulting from blunt force applied to the infant's head.

The forensic pediatrician also had an opportunity to examine N.S.E. and G.A.E. while they were in the emergency department. N.S.E. had old and new bruises and pattern markings on her chest, abdomen, back, and right cheek reflecting that she had been beaten with a belt and looped cord object on more than one occasion. Similarly, G.A.E. had a mark on his right cheek indicative of physical abuse.

N.S.E. and G.A.E. were placed in the immediate protective custody of the DeKalb County Department of Family and Children's Services ("DFCS"). DFCS subsequently filed its deprivation petition regarding N.S.E. and G.A.E., and the juvenile court conducted a hearing on the matter. At the time of the hearing, the father was incarcerated and had been charged with murder and other child cruelty crimes for the death of E.E. and the abuse perpetrated upon the two surviving children. The mother had been charged on three counts of deprivation of a minor for the abuse of the three children. Following the hearing, the juvenile court adjudicated N.S.E. and G.A.E. deprived and awarded temporary custody to DFCS, finding that the two children, along with E.E., had been subject to severe, ongoing physical abuse while in the custody and control of their parents.

DFCS developed a nonreunification case plan for N.S.E. and G.A.E. with adoption as the goal, which the juvenile court adopted as the permanent plan for the children. DFCS then filed its petition to terminate the parental rights of the mother and father based on the allegations of physical abuse. The juvenile court conducted an evidentiary hearing over several days to address the petition.

At the hearing, the forensic pediatrician and medical examiner testified about their observations and opinions concerning the children as set out above. The father and mother also testified. The father admitted that he had disciplined all three children by spanking them with objects or slapping them, resulting in bruises and marks on their bodies. According to the father, his mode of discipline was required by his religious beliefs, and he asserted that "[a]ny sound spanking will leave a mark." The father further admitted that he began spanking E.E. at least one month prior to his death; that he had previously broken E.E.'s femur due to slapping him; and that on the day when E.E. was taken to the hospital, he had spanked and slapped E.E., who he believed had exhibited "stubbornness." Finally, the father testified that he was in charge of discipline, but that on one occasion a few days before E.E.'s death, the mother had assisted him in spanking N.S.E. and G.A.E. with belts, leading to bruises and marks on their chests and backs.

The mother testified that she was aware of the severe discipline inflicted upon the children from their infancy by their father and the injuries they had sustained as a result. Despite the fact that she saw the bruises and other injuries on her children caused by the father, she never took any of the children to a doctor. Additionally, the mother testified that based on the instruction of the father, she had waited to call 911 and had assisted in performing CPR for four hours on E.E. after he had lost consciousness and stopped breathing. While the mother asserted that she did not condone the severe disciplinary methods of the father and had confronted him on numerous occasions about the issue, she stated that she was afraid of the father and felt powerless to stop him because he also had physically abused and threatened her. Nevertheless, despite her alleged concern over the father's methods, the mother had physically assaulted the maternal grandmother when the latter attempted to intervene in the father's discipline of the children and had also told her family not to get involved when they voiced their concerns to her. Moreover, the mother conceded that she herself had spanked N.S.E. and G.A.E. with belts on one occasion at the behest of the father.

The mother went on to testify that even though she had been helpless to stop the father, she was determined to break the cycle of abuse and wanted to regain custody of N.S.E. and G.A.E. The mother pointed out that she had divorced the father, had attended a six-week parenting course, and was currently participating in a support group for battered women. In an effort to explain why she did not seek to end the abuse or obtain help for her children, the mother called an expert clinical psychologist, who testified that the mother exhibited patterns of behavior consistent with a battered spouse, suffered from cognitive distortions, and had dependant personality disorder, all of which combined to create a situation of learned helplessness. He further opined that as a result of the abuse she had witnessed and experienced, the mother had symptoms of post-traumatic stress disorder.

In rebuttal, DFCS presented the testimony of its own expert clinical psychologist that several of the mother's actions were atypical of one who is suffering from the learned helplessness associated with being a battered spouse. For example, the mother worked outside of the home, which was not typical of a wife suffering from learned helplessness caused by abuse. The fact that the mother had confronted the father about his disciplinary methods also was inconsistent with learned helplessness. Additionally, the psychologist testified that the mother would need long-term, intensive psychotherapy and family counseling before she could ever be trusted again with her children, and that without such therapy there was a high risk of the mother living again with an abusive partner.

The case managers of N.S.E. and G.A.E. testified at the hearing as well. They noted that when the children came into care, they were emotionally fragile and engaged in combative behavior. N.S.E. and G.A.E. also were observed engaging in "silent" crying, where they would cry but place their hands over their mouths to avoid making noise, which their mother had taught them to do in order to avoid being hit by their father. The case managers further testified that although the children have had supervised visits with their mother since coming into care, they are afraid of her and have resisted having any contact or interaction with her unless bribed with toys and candy. In contrast, N.S.E. and G.A.E. have developed strong attachments to their current foster parents, who wish to adopt them.

Following the hearing, the juvenile court granted the termination petition and awarded permanent legal custody of N.S.E. and G.A.E. to DFCS for the purpose of adoption. This appeal ensued.

1. The mother contends that the juvenile court erred in...