312 Ga. App. 180
Ga. Ct. App.2011Background
- In DeKalb County, DFCS filed deprivation petitions alleging four children deprived due to father’s sexual abuse of S.B. and T.B. and mother’s failure to protect.
- S.B., age 13, disclosed to a friend at school that her father forced her to have sex with him; disclosure supported by counselor and DFCS.
- S.B. also stated mother witnessed sexual intercourse and did nothing to stop it; mother admitted the same to DFCS.
- T.B., age 14, testified about punishment involving removal of clothes and touching, while not alleging ongoing abuse by father.
- The father admitted to sexual intercourse with S.B. and to commanding T.B. to undress on one occasion, later recanting; both parents invoked Fifth Amendment at hearing.
- The juvenile court found all four children deprived on November 18, 2009, and order affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether clear and convincing evidence supports deprivation | Ka. B. argues insufficient evidence to deprive | Ka. B. asserts lack of corroborating signs and credibility concerns | Evidence supported deprivation |
| Whether all four children were deprived | Mother’s failure to protect and father’s abuse extended to siblings | Lack of direct evidence on Ke. B. and Ka. B. of deprivation | All four children deprived |
| Whether denial of motion to dismiss was proper | Deprivation findings based on DFCS's credible evidence | Insufficient evidence to sustain deprivation | Motion to dismiss properly denied |
| Whether deprivation order lacked required findings of fact | Order sufficiently linked deprivation to abuse and failure to protect | Order deficient for missing explicit findings | Order adequate and compliant with OCGA 15-11-54(a) |
Key Cases Cited
- In the Interest of T.W., 297 Ga.App. 886, 678 S.E.2d 546 (Ga. App. 2009) (credibility and weighing of evidence in deprivation cases)
- In the Interest of A.A., 293 Ga.App. 471, 667 S.E.2d 641 (Ga. App. 2008) (parent may plead Fifth Amendment, court may infer harmful truth)
- In the Interest of M.K., 288 Ga.App. 71, 653 S.E.2d 354 (Ga. App. 2007) (standard for child deprivation credibility evidence)
- In the Interest of C.A.L., 307 Ga.App. 658, 705 S.E.2d 885 (Ga. App. 2011) (child's testimony can establish deprivation)
- In the Interest of B.H., 295 Ga.App. 297, 671 S.E.2d 303 (Ga. App. 2008) (admission of abuse evidence supports deprivation finding)
- In the Interest of E.D., 287 Ga.App. 152, 650 S.E.2d 800 (Ga. App. 2007) (judgment may rely on indirect effects of parental conduct)
- In the Interest of J.V., 241 Ga.App. 621, 526 S.E.2d 386 (Ga. App. 1999) (OCGA findings requisite after deprivation hearing)