A.S.M., In Interest of
| Decision Date | 15 August 1994 |
| Docket Number | Nos. A94A1373,A94A1374,s. A94A1373 |
| Citation | 448 S.E.2d 703,214 Ga.App. 668 |
| Parties | In the Interest of A.S.M., a child. |
| Court | Georgia Court of Appeals |
S. Lester Tate III and Kelley A. Dial, for appellants.
Michael J. Bowers, Atty. Gen., William C. Joy, Senior Asst. Atty. Gen., Teresa E. Lazzaroni, Asst. Atty. Gen., Velma C. Tilley, and Nelson & Bradley, Stephen R. Bradley, for appellee.
The Bartow County Department of Family & Children Services (DFACS) filed a petition to terminate the rights of the parents to their minor child. The father contends (Case No. A94A1373) that the court erred in admitting the expert testimony of a social worker, who based her opinions, at least in part, on hearsay from a psychologist, who did not testify at trial. The mother contends (Case No. A94A1374) that the evidence presented was insufficient to establish by the appropriate standard that a termination of her parental rights was warranted.
In May 1990, the parents were involved in a contested divorce proceeding, and the court awarded temporary custody of their child to DFACS. The court-ordered investigations of the parents' homes resulted in neither home being approved for placement of the child. The divorce proceeding was dismissed after the parties apparently reconciled. The court declined to return custody of the child to either parent and transferred the issue of custody to the juvenile court.
In January 1991, the juvenile court issued a consent order finding that the child was deprived as contemplated by OCGA § 15-11-2(8)(A) and awarding temporary custody to DFACS. In the order, the court outlined a case plan designed to reunite the child and her mother, with visitation by the father. It required each parent to attend Alcoholics Anonymous at least once a week; attend counseling and/or group therapy as arranged or approved by DFACS; attend such parenting classes as recommended by DFACS; maintain a suitable home fit for occupation by the child; maintain steady employment; refrain from alcohol abuse; submit to random home visits by a representative of DFACS; and visit the child regularly. In addition, the mother was required to submit to random drug and alcohol screens requested by DFACS, refrain from the use of illegal substances, have no live-in male companions nor any overnight male guests to whom she was not married, and pay child support in the amount of $5 per week while the child was in the custody of DFACS.
The matter came before the superior court for judicial review in August at the request of the Citizens Review Panel. Following a hearing, the court found that the parents had both failed substantially to comply with the case plan, which it somewhat altered. Additional home evaluations were ordered for each parent. Again, neither home was approved. The parents divorced in November and custody was awarded to the mother, subject to final determination by the juvenile court.
The following March, the court extended the January 1991 and September 1991 orders after finding that in intervening months, the mother, unlike the father, had failed to follow most of the case plan. The court also found that when the child came into the custody of DFACS in May 1990, at the age of two years and eight months, she was in diapers, cried for a bottle, and could not speak intelligibly. It took some time for the foster parents to get her head clean. At age 37 months, she was found to be the developmental equivalent of a 19-month-old. Many of her teeth were decayed and the top front four had to be extracted. She was provided with several crowns and was fitted with a partial bridge. At age 47 months, her developmental equivalent was that of a 46-month-old.
The court again found that the child was deprived, that the parents were unable to provide for her proper care and control, that her return to the home of either parent would be contrary to her welfare, and that custody should remain in DFACS. The reunification plan was continued and both parents were ordered to comply with its terms. The father was granted increased visitation due to his work toward compliance with the plan.
The next month, April 1992, the court entered an order stating that DFACS had filed a motion for "supervised visitation pending investigation," based upon allegations by the child that her father had sexually abused her after her foster mother noticed anal injuries while bathing her. DFACS requested that he submit to testing, to which he agreed, and the court granted the motion for supervised visitation.
The father was tested at the Highland Institute. The written report of the director, Deloris Roys, stated that the father had been administered a battery of psychological tests and had scored in the deviant range on various of the test measures of sexual deviance. The report recommended that he undergo sex offender treatment.
Several months later, DFACS filed the present petition for termination of parental rights. At the hearing, DFACS called Roys as a witness. She testified that in her capacity as a master's-level licensed social worker, she administers tests to determine if the individuals tested have the characteristics of sex offenders. She does not interpret the tests. They are interpreted by Dr. Nichols, a licensed clinical psychologist. Roys acknowledged that all she knows about the interpretation of the tests is what she was told by Dr. Nichols, that by state law she is prohibited from interpreting the tests, that all she can do is give the results to the individual and make recommendations concerning treatment, and that these tests form part of the basis of her opinion. For these reasons, the father objected to her offering any testimony based on the tests as hearsay, since Dr. Nichols was not available for cross-examination. The court overruled the objection.
Roys also prepared a written report summarizing her conclusions based on the psychological tests she administered to the father. This report was admitted without objection after Roys gave her objected-to testimony in which she likewise stated her conclusions based on the tests.
The juvenile court entered separate orders terminating the father's and mother's parental rights. In the mother's order, the court stated that it had found by clear and convincing evidence that she had failed significantly for a period of one year or longer prior to the filing of the petition to comply with the court-ordered plan designed to reunify her with the child in that she failed: to attend AA at least once a week, to obtain counseling as directed, to attend parenting classes as directed, to maintain a suitable home fit for occupation by the child, to maintain steady employment, or to pay child support as directed. See OCGA § 15-11-81(b)(4)(C)(ii) and (iii).
The court also found that the results of a psychological evaluation in April 1991 indicated that the mother had serious psychological problems, that she was probably in need of psychotropic medication, that she was in need of counseling which she did not obtain, and that a psychologist had testified that it was unlikely that without counseling she had gotten any better. The court proceeded to find that she suffers from a mental or emotional deficiency of such a nature as to make it highly unlikely that she could ever have custody of the child. See OCGA § 15-11-81(b)(4)(B)(i).
The court found by clear and convincing evidence that the mother is responsible for the past physical, mental and emotional neglect of the child; that the child is a deprived child; that the lack of proper parental care or control by both her natural parents is the cause of the child's status as deprived; that the cause of the child's deprivation is likely to continue and will not likely be remedied; that the continued deprivation of the child will cause or is likely to cause serious physical, mental, emotional or moral harm to the child; and, that after considering the physical, mental, emotional and moral condition and needs of this child including her need for a secure and stable home, termination of parental rights is in her best interest. See OCGA § 15-11-81(a); (b)(4)(A)(i) through (iv); (b)(4)(B)(v).
In the father's order, the court found that, based on Roys' testimony, he had scored in the deviant range on various tests and had scored 26 on an empirically derived scale wherein a cut-off score of 15 or higher shows scoring similar to known child molesters. The court noted that Roys testified that even if the father obtained recommended treatment, he would never be "cure...
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