text:
    A15A2226.
    A15A2227.
    In THE INTEREST OF S. C. S., a child. In THE INTEREST OF A. W., a child.
    (784 SE2d 83)
   Branch, Judge.

In these companion cases, the mother of S. C. S. and A. W. appeals from orders of the Juvenile Court of Murray County finding each of the mother’s children to be dependent and awarding custody of those children to the Murray County Department of Family and Children Services (“DFACS” or “the Department”). In Case No. A15A2226, the mother asserts that in finding S. C. S. tobe dependent, the juvenile court misstated or mischaracterized the relevant evidence. The mother further contends that a review of the evidence actually presented shows that the State failed to meet its burden of proving S. C. S.’s dependency by clear and convincing evidence. Finally, the mother argues that the State failed to prove that she was an unfit parent such that removal of S. C. S. from her custody was warranted.

In Case No. A15A2227, the mother argues that the State failed to prove by clear and convincing evidence either that A. W. was a dependent child or that removal of A. W. from the mother’s custody was warranted. The mother also contends that the juvenile court erred when it found that the State had made reasonable efforts to prevent A. W.’s removal from the mother’s custody.

For reasons explained more fully below, we find no error by the juvenile court in either case, and we therefore affirm the judgment in each case.

Case No. A15A2226

The record as to S. C. S. shows that the mother was never married to S. C. S.’s father and that she had sole physical custody of the child at all relevant times. In August or September 2014, when S. C. S. was approximately 18 to 19 months old, the mother and S. C. S. began living with the mother’s boyfriend. Shortly thereafter, in October 2014, the mother and her grandmother got into a physical altercation after the grandmother questioned why there was significant bruising on S. C. S.’s buttocks. The altercation resulted in the filing of a police report, and the police, in turn, reported S. C. S.’s injuries to DFACS.

When interviewed by DFACS, the mother stated that she was the individual in charge of disciplining S. C. S. and admitted to spanking the child on his bare bottom. The mother insisted, however, that she had only “popped” the child once with her bare hand. As a result of the incident, DFACS put a safety plan in place, pursuant to which the mother agreed not to use any form of corporal punishment on the child. DFACS also provided the mother with parenting resources, including a referral for training on appropriate parenting and discipline. The Department closed the October 2014 case as to S. C. S. on December 3, 2014.

Two days later, in the early morning hours of December 5, 2014, S. C. S. was admitted to a local hospital with life-threatening injuries, including a fractured skull, bleeding on the brain causing a loss of consciousness, and compression fractures of several thoracic vertebrae. In addition to these injuries, S. C. S. also had a recent bruise on the left side of his forehead, near his hairline; a number of “older” bruises across his upper forehead; bruises on his nose; scratches on both ears; bruises on his chest; a significant bruise in the middle of his lower back, near his hips; a bruise on his right shin; a circular bruise around his left ankle; and bruising running down his left leg, across the top of the left foot, and across the bottom of that foot. Because none of S. C. S.’s injuries appeared to be accidental and because the mother could not adequately explain the cause of those injuries, the hospital referred the case to law enforcement authorities and DFACS.

On December 8, 2014, DFACS applied for and received an order removing S. C. S. from his mother’s custody. The juvenile court thereafter held a preliminary protective hearing, after which it entered an order granting DFACS temporary custody of the child pending a hearing on the State’s dependency petition, which was filed on December 11. The juvenile court also appointed a guardian ad litem, a special advocate, and an attorney to represent S. C. S. On January 13 and 27, 2015, the juvenile court held the dependency hearing, at which the State presented evidence relating to both the October and the December 2014 DFACS cases involving S. C. S.

As to the injuries sustained by S. C. S. in December, the mother testified that late on the evening of December 4 she left the apartment she shared with her boyfriend and S. C. S. and went to her job on the overnight shift at a local convenience store. At that time S. C. S., who the mother left in the care of her boyfriend, was not injured and was asleep in his toddler bed. At approximately 2:30 a.m. on December 5, the mother received a call from the boyfriend, who told her that S. C. S. had awakened crying and that the child was having difficulty breathing. The mother called 911 and then proceeded to her apartment, where she met paramedics and rode with S. C. S. to the hospital. When asked about the origins of her child’s injuries, the mother insisted that the boyfriend had not harmed the child. The mother then explained that starting at the age of approximately one year, S. C. S. had begun experiencing “night terrors,” during which he would “flail violently” and “thrash [ ] around constantly.” The mother therefore believed that either on the night in question or during one night earlier in the week, the child had experienced such a night terror and that he had hit his head on the rail of his toddler bed, thereby fracturing his skull. Additionally, the mother testified that two days before S. C. S. went to the hospital, he had struck his head on the-bottom of the kitchen table when he crawled underneath the table to retrieve a ball. When questioned about the bruises on S. C. S.’s forehead, the mother stated that “he always has a bruise on his forehead... because he always bumps into everything.” The mother also claimed that the severe bruise in the center of the child’s lower back resulted from S. C. S. falling in the tub directly onto his buttocks and that the bruises on his feet (including the top of his foot and the circular bruise around his left ankle) occurred when S. C. S. was playing outside in his bare feet during the first week of December. The mother admitted that she could not explain the bruises on her son’s neck and chest at the time he was admitted to the hospital, because to her knowledge no such bruises existed when she left for work the night before.

The boyfriend testified that on the night S. C. S. went to the hospital, he noticed no unusual bruises on the child before the toddler went to bed at approximately 9:00 p.m. After the mother left for work, the boyfriend played video games and heard S. C. S. doing some “whining that he does when he’s having trouble sleeping,” but the boyfriend did not check on the child, and S. C. S. eventually went to sleep. Several hours later, S. C. S. woke up with a loud cry, and when the boyfriend went to check on the toddler, he discovered that S. C. S. was having extreme difficulty breathing. The boyfriend denied hurting the child, but acknowledged that he and the mother were the only two people who had any contact with S. C. S. on the day in question. When questioned, the boyfriend stated that he was aware that the child experienced night terrors, but that he did not hear S. C. S. thrashing in his toddler bed on the night in question. The boyfriend also admitted that he could offer no explanation as to how S..C. S. might have sustained his injuries.

Brett Morrison was the detective with the Murray County Sheriff’s Office who investigated the December incident, and he testified that he had received special training in the investigation of child abuse cases. In Morrison’s opinion, the injuries S. C. S. suffered in December 2014 were not accidental. Morrison stated that the occipital skull fracture and retinal hemorrhaging that S. C. S. experienced would have resulted from “an extremely violent impact to or shaking of the child,” explaining that it “takes quite a bit of force to cause such injuries.” Similarly, the compression fractures to the vertebrae would also require significant force to inflict, and Morrison believed those fractures most likely resulted from the child being physically “slammed down” or falling from a great height. Additionally, Morrison stated that the bruise on S. C. S.’s lower back was also consistent with the child having been slammed down onto his bottom. With respect to S. C. S.’s other bruises, Morrison observed that the bruises on the neck, ankle, and foot were not typical toddler bruises. Finally, Morrison testified that based on his investigation into S. C. S.’s injuries, he did not believe that S. C. S. would be safe if he was returned to his mother’s custody.

The State also presented the deposition testimony of Annamaria Church, a pediatrician who consulted on S. C. S.’s case at the hospital. According to Dr. Church, who was qualified as an expert in child abuse cases, “none of the injuries or traumas” sufferedby S. C. S. were consistent with the mother’s explanations for those injuries. Specifically, Dr. Church stated that neither S. C. S.’s flailing or thrashing around in his bed as a result of night terrors nor his hitting his head on the underside of the kitchen table would explain the skull fracture to the back of the child’s head. The doctor described that fracture as “pretty extensive” and requiring “a good amount of force” to inflict, explaining that the skull is “hard[ ] to break.” The doctor therefore believed that the skull fracture was an “impact injury,” meaning it occurred when S. C. S. was “slammed” into or against something. Additionally, according to Dr. Church, it appeared from the image studies of the child’s head that the skull fracture in question was not the first significant injury to S. C. S.’s head, as those studies showed evidence of an earlier injury in that same area of the brain.

Dr. Church further testified that the compression fractures of S. C. S.’s vertebrae were most likely the result of the child being sat down “forcefully... smashing him down or onto something hard,” and noted that such fractures “usually take[ ] a heck of a lot of force” to inflict. The doctor also stated that the bruise on S. C. S.’s back was not consistent with him falling straight down onto his buttocks in the bathtub, as a bruise resulting from such an incident would have appeared lower down on the back. As to the bruises on S. C. S.’s forehead, Dr. Church testified that there were too many of them for the bruises to be considered accidental. Additionally, the doctor testified that she could not “fathom an accidental means” of a child receiving the bruises that appeared on S. C. S.’s feet and ankle. According to Dr. Church, it appeared that the many bruises over the different parts of S. C. S.’s body were in various stages of healing, and this fact led her to conclude that it was more likely than not that S. C. S.’s injuries had been inflicted over a period of time. Finally, Dr. Church opined that the life-threatening injuries that S. C. S. received in December 2014 could have occurred in only one of two ways. The first possibility was that the boyfriend inflicted those injuries after the mother left for work. Alternatively, either the mother or the boyfriend or both could have injured the child earlier in the day or evening, before the mother went to work, with the child being left unconscious (instead of asleep). Under those circumstances, Dr. Church believed that the report that the child woke up crying showed that the child had regained consciousness at some point. When asked if in her opinion, S. C. S. would be safe if he were returned to his mother’s custody, Dr. Church replied “absolutely not.”

With respect to the October 2014 DFACS case regarding S. C. S., the State introduced photos of the bruises that appeared on S. C. S.’s buttocks at that time. The photos showed five distinct bruises on the child’s buttocks, as well as a number of other bruises that were on his buttocks and going up his back. When questioned about the incident, the mother continued to maintain that, despite the number of bruises appearing on S. C. S., she had only given the child one spank with her open hand. The mother also explained her decision to spank the toddler by saying that he had behavior problems, he had a very bad temper, and that on the day in question he had spit at her and attempted to bite her.

After reviewing the October photos of S. C. S.’s buttocks, Dr. Church testified that in her opinion-the bruises were “definitely not” consistent with the child having received one swat with an open hand on his bare bottom. Instead, it appeared to her that some of the bruises were inflicted by a hand on several occasions — i.e., the bruises did not result from a single spanking. Additionally, the physician believed that some of the bruises looked as though they resulted from a strap or some other implement.

The State also introduced evidence showing that S. C. S. first began showing visible signs of injury after the mother’s boyfriend moved into the residence in approximately August 2014. Between March and September 2014, S. C. S. was enrolled in a local daycare center. The director of that center testified that beginning in August 2014, a number of bruises began appearing on S. C. S. During that month, daycare workers documented bruises on the child’s buttocks, his leg, one of his testicles, and behind one of his ears. When asked about the bruises found on the child’s buttocks on August 19, the mother responded that the 18-month-old had received a spanking for refusing to listen to her, and she explained an injury to the child’s mouth by saying that he “busted his lip” playing with a toy. When the facility director subsequently contacted the mother to discuss some additional bruises found on S. C. S. the next week, the mother became angry and insisted that the additional bruising occurred when the toddler fell out of bed. On August 27, the mother brought S. C. S. to daycare with a bruise on his forehead and reported to the daycare workers that the child had bumped his head climbing out of his car seat that morning. The record from S. C. S.’s pediatrician, however, showed that the mother had taken the child to the doctor on August 25 for treatment of a bruise on the center of his forehead and bruises on his right ear. The mother told the pediatrician that S. C. S. had sustained those injuries at daycare.

Records from the pediatrician’s office also showed that the mother took S. C. S. to the doctor in November 2014 because of more bruising, and on this visit the mother reported for the first time that S. C. S. had behavioral issues, implying that those issues were the cause of his bruises. Notably, however, the daycare director stated that she considered S. C. S. a “normal” two-year-old with no behavioral problems. Additionally, the DFACS supervisor who oversaw S. C. S.’s case testified that since the child entered foster care upon his release from the hospital in December 2014, the supervisor had received no reports of S. C. S. having any night terrors, behavioral issues, or bruising.

Finally, the State presented the testimony of the boyfriend’s ex-wife, who testified as to his violent tendencies. Specifically, the ex-wife testified that while the couple was married, the boyfriend abused her verbally and that after the couple separated, he also became physically violent toward her. The ex-wife explained that she eventually obtained a restraining order against her former husband after he broke into her home and physically assaulted her, set a fire in her yard to burn her personal belongings, threatened her, and generally began behaving erratically. The ex-wife stated that she was afraid of her former husband because he was prone to anger and “goes into a rage” when he “doesn’t get what he wants.”

The mother acknowledged that the child began suffering significant bruising at or around the time the boyfriend moved into the home. And she further acknowledged that she and the boyfriend were the only two people to have contact with S. C. S. on the day in question. Additionally, the mother maintained that when she put S. C. S. to bed on December 4 the'child had no unusual bruising or other injuries. The mother also admitted that she was aware of the opinions of medical and law enforcement authorities that the injuries sustained by S. C. S. were deliberately inflicted on him. Despite all of this evidence, however, the mother testified as to her alleged belief that all of the child’s injuries were accidental because S. C. S. is “accident prone.” Additionally, even given the objective facts and after hearing the testimony of her boyfriend’s ex-wife as to the man’s violent tendencies, the mother testified that if custody were returned to her she would have no concerns about allowing the boyfriend to be around S. C. S., as she refused to believe that the boyfriend would injure her child.

Based on the foregoing evidence, the juvenile court entered an order finding that S. C. S. was a victim of physical abuse and was therefore a dependent child. The court further found that returning S. C. S. to his mother would be contrary to the child’s welfare and it therefore awarded custody of the child to DFACS. The mother subsequently filed a petition seeking to modify or vacate the dependency order. At the hearing on that petition, the mother presented the testimony of John G. Galaznik, M.D., a pediatrician who had developed a specialty in determining the cause of injuries to infants and small children. Dr. Galaznik had reviewed S. C. S.’s medical records and the available imaging studies of the child’s injuries. The physician, however, had not interviewed either the mother, S. C. S.’s treating physicians, or any employee of DFACS.

According to Dr. Galaznik, a skull fracture such as that suffered by S. C. S. could be consistent with a toddler falling and hitting his head in the bathtub and it could also be consistent with a toddler hitting his head on a table. Dr. Galaznik further stated, however, that it was not his job to say whether S. C. S.’s injuries resulted from abuse. He explained that he was hired based on the assumption that the medical history and explanation of the child’s injury given by the parent was true, and that his job was to examine the evidence and see if it could be interpreted to support the parent’s version of events. Additionally, Dr. Galaznik stated that it was not his job in this case to form an opinion as to when S. C. S. suffered the injuries in question or whether those injuries were inflicted deliberately. Thus, although the mother claimed that the child had hit his head two or three days before he was taken to the hospital, Dr. Galaznik could not say definitively that S. C. S.’s most serious injuries were that old, and he acknowledged the possibility that those injuries were inflicted on the same night S. C. S. went to the hospital. Nor could Dr. Galaznik rule out physical abuse as a cause of S. C. S.’s injuries. The physician acknowledged that he had no way of knowing whether the mother’s explanations as to the cause of S. C. S.’s injuries were true, and he stated that his role in this case was not “to say whether this child was abused or not abused.”

Dr. Galaznik further admitted that he would find “suspicious” any assertion that a skull fracture such as that suffered by S. C. S. resulted from a bathtub fall. Moreover, based on his experience, Dr. Galaznik would not expect compression fractures of the vertebrae to result from a child’s thrashing around in bed and/or striking the sides of the bed. Finally, Dr. Galaznik acknowledged that many of the bruises on S. C. S., including the circular bruise on the child’s ankle, were not in locations where one would expect a child to incur an accidental bruise.

Following the hearing at which Dr. Galaznik testified, the juvenile court entered an order denying the mother’s petition to vacate or modify the dependency order. The mother then filed this appeal.

Under the most recent version of Georgia’s Juvenile Code, the juvenile court may place a minor child in the protective custody of the Department where the State shows, by clear and convincing evidence, that the child is a “dependent child.” See OCGA §§ 15-11-150 (petition alleging dependency); 15-11-152 (contents of petition alleging dependency); 15-11-180 (burden of proof). Thus, on appeal from an order finding a child to be a dependent child, we review the juvenile court’s finding of dependency in the light most favorable to the lower court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child is dependent. In the Interest of A. B., 289 Ga. App. 655 (1) (658 SE2d 205) (2008). In making this determination we neither weigh the evidence nor judge the credibility of the witnesses, but instead defer to the factual findings made by the juvenile court, bearing in mind that “[t]he juvenile court’s primary responsibility is to consider and protect the welfare of a child whose well-being is threatened.” Id. at 656 (1) (citation, punctuation and footnote omitted). See also In the Interest of L. F., 275 Ga. App. 247 (620 SE2d 476) (2005).

The State alleged, and the juvenile court found, that S. C. S. was a dependent child because he was a victim of abuse. The Code defines abuse, in relevant part, as “[a]ny nonaccidental physical injury or physical injury which is inconsistent with the explanation given for it suffered by a child as the result of the acts or omissions of a person responsible for the care of a child.” OCGA § 15-11-2 (2) (A). On appeal, the mother challenges the juvenile court’s finding of dependency on two grounds, and she also challenges the juvenile court’s removal of S. C. S. from her custody.

1. The mother contends that the factual findings made by the juvenile court in support of its finding of dependency “misstated or mischaracterized [the] evidence,” and that this fact, standing alone, requires us to vacate the dependency order and remand the case for further consideration. See In the Interest of S. J., 270 Ga. App. 598, 610 (1) (c) (607 SE2d 225) (2004) (where a dependency order relies primarily on “misstatements and mischaracterizations of the evidence and unsubstantiated hearsay,” the appellate court must, “[a]t a minimum . . . vacate such an order and remand the case for reconsideration”) (footnote omitted). We find no merit in this assertion.

(a) The mother identifies three separate factual findings of the juvenile court that she contends were erroneous because they mischaracterized the evidence. Specifically, the mother contends that the trial court erred in finding that S. C. S. had at least 15 bruises on his buttocks in October 2014; that the bruise present on S. C. S.’s testicles in August 2014 was caused by anything other than an allergic reaction to disposable diapers; and that the mother and the boyfriend remained in a relationship. The evidence, however, supports each of these findings.

(i) As to the mother’s claims of errors regarding S. C. S.’s injuries, the photos taken in October 2014 of the bruises on S. C. S.’s buttocks and back show that the bruises present at that time were numerous and there could, in fact, be more than 15 bruises. Additionally, the daycare supervisor testified that in August 2014 S. C. S. suffered an allergic reaction to his disposable diapers that resulted in what she described as something akin to diaper rash. The mother informed the daycare of the allergic reaction and the fact that it had caused S. C. S.’s genitals to become “red and swollen” on August 25. The following day, when applying prescription ointment to S. C. S.’s genitals, daycare workers saw a bruise on one of the child’s testicles that had not been there the previous day. At the hearing, the mother offered no evidence — either in the form of S. C. S.’s pediatric records or testimony from her expert witness — that a bruised testicle could result from an allergic reaction.

(ii) The evidence also supported the juvenile court’s finding that the mother and the boyfriend remained in an “ongoing relationship.” Although both the mother and the boyfriend testified that they no longer lived together, the record showed that they had daily contact either in person or via cell phone; that the boyfriend used the mother’s car to get to work four to five days a week; that at times the mother drove the boyfriend to and from work while on other days she remained the entire day at the apartment they used to share (and where the boyfriend still resided) while the boyfriend drove himself to and from work.

(b) The mother also points to four specific instances of allegedly erroneous misstatements by the juvenile court which she claims warrant reversing or vacating the finding of dependency. As the mother acknowledges in her brief, however, “[a] misstatement in a finding of fact [contained in a dependency order] is not reversible error unless the appellant can show that the misstatement was harmful.” In the Interest of A. W., 264 Ga. App. 705, 708 (3) (592 SE2d 177) (2003) (citation and footnote omitted). And here, the mother has failed to show how any of the juvenile court’s erroneous factual findings harmed her.

(i) The mother contends that the juvenile court erred in identifying Dr. Church as one of S. C. S.’s treating physicians, because the record showed that she was simply a consulting physician, brought in “to determine if the injuries [to S. C. S.] were caused by abuse ... or if they matched the account given by the parents.” Whether one characterizes Dr. Church as a treating or a consulting physician, however, is not relevant to her testimony in this case or to the question of whether that testimony supported the conclusion that S. C. S. was abused. Here, the record shows that Dr. Church was qualified as an expert in child abuse cases and in her expert opinion, the injuries S. C. S. suffered were not accidental but instead were inflicted intentionally. In light of this evidence, the mother cannot show she suffered any harm as a result of the juvenile court identifying Dr. Church as one of S. C. S.’s treating physicians, rather than as an expert consultant.

(ii) The mother also asserts that the juvenile court mistakenly found that the October 2014 DEACS case regarding S. C. S. was still ongoing at the time of the December incident. We agree that the record shows that the October case was closed on December 3, 2014, and the second DFACS case was not opened until December 5. The mother fails to explain, however, why the juvenile court’s confusion as to the exact date on which DFACS closed its first case should require the juvenile court to reconsider its finding of dependency, especially given that the injuries S. C. S. suffered in December, standing alone, support the juvenile court’s finding that S. C. S. was a dependent child.

(iii) The mother further argues that the juvenile court erred in finding that the mother and the boyfriend offered inconsistent testimony “regarding the events leading up to” S. C. S. being taken to the hospital. Even assuming that there were no inconsistencies in their testimony, however, the mother cannot show any harm resulting from this error. Indeed, it is the consistencies in the testimony offered by both the mother and the boyfriend that support the finding that S. C. S. was a victim of abuse at the hands of these individuals. Specifically, both the mother and her boyfriend testified that they were the only two people to have any contact with S. C. S. on the day he was hospitalized and that neither had any knowledge of deliberate injuries being inflicted on the child.

(iv) Finally, the mother argues that the trial court erred in finding that “the mother testified that [S. C. S.] had [no] bruises anywhere on his body” when she left for work on the evening of December 4. The mother points out that during her testimony she acknowledged and offered explanations for the bruises on S. C. S.’s forehead, feet, and back. Again, however, the mother fails to show how the juvenile court’s misstatement harmed her. It appears that in this regard, the juvenile court was focused on the mother’s testimony that S. C. S. was not suffering from any significant injuries at the time she left for work — i.e., that the mother could offer no plausible explanation for the life-threatening injuries suffered by her child.

2. The mother also argues that the actual evidence of record, when properly characterized, does not support the finding that S. C. S. is a dependent child. In support of this argument, the mother relies on the fact that her expert witness, Dr. Galaznik, testified that S. C. S.’s most serious injuries were consistent with the explanations offered by the mother as to the potential accidental causes of those injuries. This argument, however, ignores the testimony of Dr. Church, the sheriff’s office investigator, and the DFACS employees, all of which supported the conclusion that S. C. S.’s injuries were deliberately inflicted and not accidental. To the extent that this evidence was conflicting, we emphasize that as an appellate court, we do not decide what weight should be afforded to specific evidence. See In the Interest of W. W., 308 Ga. App. 407 (707 SE2d 611) (2011). Rather we must affirm the trial court if the record shows that “any rational trier of fact could have found by clear and convincing evidence that the child was [dependent].” Id. (citation and punctuation omitted).

Here, the juvenile court could find that clear and convincing evidence supported the conclusion that S. C. S. suffered significant physical abuse and that the only persons with the opportunity to harm S. C. S. were the mother and her boyfriend. Moreover, despite the mother’s testimony as to the other potential causes of S. C. S.’s life-threatening injuries, the child had not suffered night terrors, behavioral problems, or significant bruising since being removed from his mother’s custody. Given this evidence, and given the juvenile code’s definition of a dependent child, the evidence supports the juvenile court’s finding that S. C. S. was a dependent child. See In the Interest of K. B., 302 Ga. App. 50, 53 (1) (690 SE2d 627) (2010) (evidence that child suffered physical abuse while in her mother’s custody supported juvenile court’s finding that child was deprived); In the Interest of A. R, 287 Ga. App. 334, 336 (651 SE2d 467) (2007) (child’s “multiple unexplained fractures while in the custody of the mother and father [supported] the juvenile court’s finding that [the child] was deprived”); In the Interest of T. J., 273 Ga. App. 547, 549-550 (615 SE2d613) (2005) (fact that child was brought to hospital with subdural hematoma and multiple fractures supported a finding of deprivation, even though the cause of the injuries remained unknown).

3. As a general rule, a juvenile court may order a dependent child removed from a parent’s custody if the evidence shows that the circumstances supporting the finding of dependency “resulted from unfitness on the part of the parent.” In the Interest of C. B., 308 Ga. App. 158, 160 (3) (706 SE2d 752) (2011) (citation and punctuation omitted). Specifically, the State must show that the parent engaged in “either intentional or unintentional misconduct resulting in the abuse or neglect of the child,” or that the parent is physically or mentally incapable of caring for the child. Id. (citation and punctuation omitted). Relying on this law, the mother argues that even if the evidence supports the juvenile court’s finding that S. C. S. is a dependent child, the juvenile court nevertheless erred in removing the child from the mother’s custody because the State failed to show that she was an unfit parent. We disagree.

As the evidence set forth above demonstrates, the abuse of S. C. S. can be attributed directly to the intentional misconduct of the mother. Specifically, the evidence shows that either the mother herself inflicted the life-threatening injuries on S. C. S. or she allowed the boyfriend the opportunity to inflict those injuries and thereafter worked to shield the boyfriend from prosecution. And the mother’s testimony made clear that her priority was protecting her boyfriend, rather than her child. Accordingly, the juvenile court did not err in removing S. C. S. from his mother’s custody. See In the Interest of C. B., 308 Ga. App. at 162 (3) (affirming father’s loss of custody where evidence showed that mother posed a danger to the child and the father nevertheless allowed the mother to care for the child, in violation of the safety plan put in place by the Department); In the Interest of S. Y., 284 Ga. App. 218, 219 (644 SE2d 145) (2007) (where evidence showed that one of mother’s children had been molested and another had suffered both an unexplained head injury and unexplained sexual abuse, that evidence supported juvenile court’s decision to remove all six of the mother’s children from her custody).

Case No. A15A2227

At the time S. C. S. was taken into DFACS custody in December 2014, the mother was pregnant with the boyfriend’s child. At the hearing on the dependency petition as to S. C. S., the mother testified that she had no concerns about the boyfriend’s ability to interact with children and that she would allow the boyfriend to help care for their child. Following the birth of that child, A. W, on March 16, 2015, DFACS applied for and received an order placing A. W. in its protective custody pending the filing and adjudication of a dependency petition as to the infant. In its removal order, the juvenile court noted that S. C. S.’s injuries were caused by either the mother or A. W.’s father (the mother’s boyfriend) or both and that therefore A. W. would not be safe with either of her parents.

The State subsequently filed a dependency petition as to A. W. and at the hearing thereon, the parties agreed to allow the juvenile court to decide the case based on the record in S. C. S.’s case. The trial court thereafter entered its order finding A. W. to be a dependent child and awarding custody of her to the Department. In Case No. A15A2227, the mother appeals from that order.

4. The mother contends that the juvenile court erred in finding A. W. to be a dependent child because there is no evidence that she had suffered any abuse or neglect. We disagree. Georgia law is clear that

when it is established that a parent has previously deprived, neglected, or abused one or more of his or her children and that the detrimental conditions existing at that time have not significantly changed, a juvenile court is under no obligation to return a child to [or place a child with] the parent and wait until the child is harmed in order to find that there is evidence of that child’s current deprivation.

In the Interest of R. B., 322 Ga. App. 421, 424 (745 SE2d 677) (2013) (punctuation and footnote omitted) (holding that finding of infant’s deprivation could be based on the evidence leading to the mother’s loss of custody of an older child, given that no circumstances had changed between the removal of the older child from the mother’s custody and the birth of the infant). See also In the Interest of A. R., 287 Ga. App. at 336 (holding that unexplained injuries suffered by one child supported the juvenile court’s order finding that both of the mother’s children were deprived, noting that “[a] juvenile court may consider a mother’s inability to properly care for one child as evidence that she will not be able to care for her other children”) (citation omitted).

Thus, a juvenile court may find a newborn child to be dependent where that child’s parent has recently lost custody of an older child as the result of physical abuse suffered by the older child while in the care of that parent. See In the Interest of K. C. H., 257 Ga. App. 529, 530 (571 SE2d 515) (2002). In A. C. H., the mother had previously lost custody of her four- and six-year-old children based on evidence showing that her boyfriend had molested the six-year-old. Id. At the time she lost custody of her children, the mother was pregnant with K. C. H., who was the boyfriend’s child. The mother subsequently married the boyfriend, and after she gave birth to K. C. H., the State filed a dependency petition seeking custody of the newborn. The juvenile court granted the State’s petition and placed the child in DFACS custody. Id. at 531. The mother appealed, arguing that under the circumstances, the State could not prove that K. C. H. was deprived, as she had never suffered any harm while in the custody of her parents. Id. We rejected that argument, noting that despite the evidence that her then-boyfriend (now husband) had molested her oldest child, the mother denied that such molestation had occurred, married the man, and continued to live with him. We explained that the deprivation order as to the two older children

made it clear that the mother’s husband posed a threat to her children, and the mother made a choice to allow her newborn child to be exposed to a potentially dangerous predator despite her notice of the danger. The mother’s own choices here with respect to K. C. H. show by clear and convincing evidence that K. C. H. was deprived.

•Id. at 532 (2).

In this case, the evidence showed that the mother herself posed a threat to A. W, given that it would support the conclusion that the mother herself had physically abused S. C. S. or at least participated in that abuse. Alternatively, the record shows that the mother allowed her boyfriend to abuse S. C. S. With respect to this second possibility, the record further shows that, despite the evidence to the contrary, the mother denied that the boyfriend had any responsibility for S. C. S.’s injuries; the mother continued to have a relationship with the boyfriend; the mother had no concerns about allowing the boyfriend around her children; and the mother would allow the boyfriend to have unsupervised contact with A. W. Under these circumstances, “the mother’s own choices . . . with respect to [A. W] show by clear and convincing evidence that [A. W] was [dependent]” based on the mother’s unwillingness to protect the child. In the Interest of K. C. H., 257 Ga. App. at 532 (2).

5. The mother also contends that the juvenile court erred in removing A. W. from her custody as the record failed to show that she was an unfit parent. For the reasons set forth in Division 3, supra, we find this argument to be without merit.

6. OCGA § 15-11-202 provides that at a hearing on a dependency petition, the State bears the burden of “demonstrating that . . . [DFACS] has made reasonable efforts to eliminate the need for removal of an alleged dependent child from his or her home.” OCGA § 15-11-202 (e) (2) (A). Additionally, in any temporary placement order entered as to a dependent child, the juvenile court must make findings of fact as to whether that child’s “continuation in or return to his or her home would be contrary to his or her welfare” and whether “reasonable efforts have been made to prevent or eliminate the need for placement of such child, unless the court has determined that such efforts are not required.” OCGA § 15-11-202 (j).

Here, the mother appeals from a temporary placement order in which the juvenile court found that DFACS “made reasonable efforts to prevent or eliminate the need for removal [of A. W.] by attempting to work with the mother in [S. C. S.’s] case,” but that those efforts failed as evidenced by the fact that S. C. S. suffered life-threatening injuries while in his mother’s custody. The court further found that in light of the record as to S. C. S., A. W. “would be at risk of harm if placed in the custody of. . . her mother,” and that A. W.’s placement with the mother would be “contrary to the welfare of the child.” The mother claims that these findings are insufficient to support the removal of A. W. from the mother’s custody as they fail to show that the Department made any effort — reasonable or otherwise — to eliminate the need to remove A. W. from the mother’s home. This argument provides no basis for reversal.

Even where the record fails to show that the Department made reasonable efforts to prevent removal of the child, that fact “shall not preclude the entry of an order” placing a dependent child in the custody of DFACS “when the court finds that [such] placement is necessary for the protection of such child.” OCGA § 15-11-202 (g). Here, the juvenile court specifically found that placement of A. W. in the Department’s custody was necessary for A. W.’s protection, as both of her parents posed a danger to the infant. Thus, even assuming that DFACS made no reasonable effort to prevent A. W.’s removal from her mother’s custody, the juvenile court’s factual findings support the award of custody to the Department.

Decided March 16, 2016.

Mitchell & Mitchell, William J. Kimsey, Alison S. Loftin, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Cynthia N. Johnson, Assistant Attorney General, for appellee.

For the reasons set forth above, we affirm the order of the juvenile court entered in Case No. A15A2226, finding S. C. S. to be a dependent child and granting custody of that child to the Department. We also affirm the order of the juvenile court entered in Case No. A15A2227, finding A. W. to be a dependent child and granting custody of that child to the Department.

Judgments affirmed.

Andrews, P. J., and Peterson, J., concur.

       Although he was a party to the dependency proceedings in the juvenile court, S. C. S.’s father is not a party to this appeal.

       Pursuant to OCGA § 15-11-145 (a),
      [i]f an alleged dependent child is removed from his or her home and is not returned home, the preliminary protective hearing shall be held promptly and not later than 72 hours after such child is placed in foster care; provided, however, that if the 72 hour time frame expires on a weekend or legal holiday, the hearing shall be held on the next day which is not a weekend or legal holiday.

       Notably, when explaining the bruise in the middle of S. C. S.’s back, the mother stated that while in the bathtub, the child had slipped and fallen directly onto his bottom. There was no evidence that S. C. S. had ever hit his head by falling in the bathtub.

       The current Juvenile Code became effective January 1,2014, and applies to all “juvenile proceedings commenced on and after that date . . . .” Ga. L. 2013, p. 294, § 5-1. The former Juvenile Code authorized a juvenile court to award custody to the Department of any minor child shown to be “deprived.” A “deprived child” was defined as a child who was “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals; [had] been placed for care or adoption in violation of law; Piad] been abandoned by his or her parents or other legal custodian; or [was] without a parent, guardian or custodian.” See former OCGA § 15-11-2 (8). The current Juvenile Code uses the word “dependent” in lieu of “deprived,” and it defines a “dependent child” as one who “[h]as been abused or neglected and is in need of the protection of the court;... [h] as been placed for care or adoption in violation of law; or... [i]s without his or her parent, guardian, or legal custodian.” OCGA § 15-11-2 (22). The new Code defines “neglect” as “[t]he failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child’s physical, mental, or emotional health or morals;. . . [t]he failure to provide a child with adequate supervision necessary for such child’s well-being; or . . . [t]he abandonment of a child by his or her parent, guardian, or legal custodian.” OCGA § 15-11-2 (48). Given the similarities between the definition of a "deprived child” and that of a “dependent child,” we find that our previous decisions addressing the deprivation of a child are relevant to appeals involving the dependency of a child.

       As noted above, a dependent child includes one who suffers “[a]ny nonaccidental physical injury or physical injury which is inconsistent with the explanation given for it... as the result of the acts or omissions of a person responsible for the care of a child.” OCGA § 15-11-2 (2) (A).

       These cases also show that to the extent the mother is arguing that the State failed to prove S. C. S.’s dependency because it failed to show that she was the person who inflicted the life-threatening injuries on her child, such an argument is without merit. See In the Interest of K. B., 302 Ga. App. at 53 (1); In the Interest of A. R., 287 Ga. App. at 336; In the Interest of T. J., 273 Ga. App. at 549-550. See also In the Interest of C. B., 308 Ga. App. 158, 162 (3) (706 SE2d 752) (2011) (a parent’s decision to expose her child to a dangerous person and subsequent failure to protect the child from that person will support a finding that the child is deprived); In the Interest of B. H., 295 Ga. App. 297, 298 (2) (671 SE2d 303) (2008) (“[i]t is well established that a juvenile court is authorized to find a [child is deprived] based on a parent’s failure to protect his or her child from injury”) (footnote omitted).

       Both S. C. S. and A. W. were placed with their maternal grandmother and her husband.

       The father of A. W. is not a party to this appeal.

       The mother relies on our decision in In the Interest of A. B., 263 Ga. App. 697, 699 (1) (589 SE2d 264) (2003), to argue that the juvenile court could no’t rely on the abuse suffered by S. C. S. to find that A. W. is a dependent child. This reliance is misplaced. In A. B., the juvenile court granted the State custody of a newborn based on the mother’s loss of custody of her older child. We vacated the order of deprivation, finding that the appellate record did not support the deprivation finding. We noted that the record contained “a mere 15 pages, [was] sketchy at best and [was] replete with hearsay and unsubstantiated statements.” 263 Ga. App. at 699 (1). Additionally, the sole witness to testify offered no testimony as to A. B. and stated that she was unsure whether the mother had been aware of the abuse suffered by the older child at the hands of the mother’s boyfriend. Id. We therefore concluded that “[although it may well be that A. B. is a ‘deprived child’ and that the deprivation is ongoing due to maternal inability to properly care for and protect him, we cannot say that the record before us contains clear and convincing evidence of the statutory elements.” Id. (citation omitted). Unlike the record in A B., however, the record in this case does contain clear and convincing evidence to support the conclusion that if she were placed in her mother’s custody, A. W. would be in significant danger of physical abuse.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A15A2254.
    YORK et al. v. RES-GA LJY, LLC.
    (784 SE2d 96)
   PHIPPS, Presiding Judge.

RES-GA LJY, LLC (“RES-GA”) sued Jim L. York and John A. Drillot (collectively, “the defendants”) for amounts owed on several commercial guaranties. The trial court granted summary judgment to RES-GA, and the defendants appeal. For reasons that follow, we affirm.

Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” We review the grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmovant.

So viewed, the record shows that at various points from 2005 to 2009, The Community Bank (“TCB”) loaned money to several entities affiliated with the defendants (“the borrowers”). As security, the borrowers executed five promissory notes and granted TCB a security interest in real estate located in DeKalb County, Gwinnett County, and Paulding County. To further secure the loans, the defendants signed commercial guaranties, through which they “guarantee^] full and punctual payment and satisfaction of the [indebtedness.” The promissory notes and guaranties were later assigned to RES-GA.

When the borrowers failed to pay off the loans, RES-GA foreclosed on and bought the properties serving as collateral. It then sought judicial confirmation that it had purchased the parcels at fair market value. Courts in the counties where the properties were located reviewed the sales, and each ultimately refused to confirm that RES-GA had paid fair market value. Two orders denying confirmation were appealed to this court, and we affirmed.

RES-GA subsequently sued the defendants as guarantors of the amounts still owed by the borrowers on the promissory notes. The defendants moved for summary judgment, arguing that because RES-GA failed to secure confirmation of the foreclosure sales, it could not recover a deficiency judgment. RES-GA responded with its own summary judgment motion. It agreed that it sought the deficiency between the unpaid principal indebtedness and the price it paid for the properties at foreclosure. But it claimed that the defendants had waived the confirmation requirement, permitting recovery. The trial court granted RES-GA’s motion, and this appeal followed.

Pursuant to OCGA § 44-14-161 (a):

When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds,... and at the sale the real estate does not bring the amount of the debt secured by the deed, ... no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

Without dispute, RES-GA bought the properties at issue for less than the amounts owed. Although it sought confirmation of these sales, its efforts failed. RES-GA concedes, therefore, that OCGA § 44-14-161 (a) prevents it from pursuing the borrowers for any deficiency. It contends, however, that it can recover the deficiency from the defendants, who guaranteed payment under the promissory notes and waived, as part of the guaranties,

any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or defenses arising by reason of: (A) the provisions of [OCGA §] 10-7-24 concerning Guarantor’s right to require Lender to take action against Borrower or any “one action” or “anti-deficiency” law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender’s commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale;... or (F) any defenses given to guarantors at law or in equity other than actual payment and performance of the Indebtedness.

The trial court agreed with RES-GA, concluding that the defendants had waived the confirmation defense. We find no error. As our Supreme Court recently explained, compliance with OCGA § 44-14-161 (a) “is a condition precedent to the lender’s ability to pursue a guarantor for a deficiency after a foreclosure has been conducted, but a guarantor retains the contractual ability to waive the condition precedent requirement.” The confirmation requirement, therefore, can be waived. And pursuant to the guaranties, the defendants agreed to waive “any and all rights or defenses based on suretyship.” On appeal, the defendants argue that the guaranties “do not contain an express or clearly stated waiver of the confirmation requirement” because a defense arising out of OCGA § 44-14-161 (a) is not “based on suretyship.” According to the defendants, a defense is “based on suretyship” only if it appears within the statutory provisions setting forth a surety’s rights and obligations. In their view, the confirmation requirement, which is part of the statutory framework governing foreclosures, rather than suretyship, falls outside the waiver.

We disagree. The defendants’ guaranties are contracts of surety-ship. Such contracts must be strictly construed, and a “surety’s liability will not be extended by implication or interpretation.” Ultimately, however, construction of a surety contract “is a question of law for the court based on the intent of the parties as set forth in the contract.” And nothing in the waiver’s language indicates that the parties intended to limit its reach to any particular statutory defenses. By its plain terms, the phrase “defenses based on surety-ship” means just that — defenses based on or arising out of a suretyship.

Decided March 16, 2016

Andersen, Tate & Carr, Thomas T. Tate, R. Matthew Reeves, Graham K. Brantley, for appellants.

Hartman, Simons & Wood, Jill D. Prussack, Chelsea L. Dennis, Katherine M. Silverman, for appellee.

The defendants claim that they are not liable to RES-GAbecause a lender must confirm a foreclosure sale before suing a guarantor for a deficiency. This confirmation defense depends upon the defendants’ status as a surety or guarantor. By any reasonable interpretation, it is based on the suretyship and included within the waiver, which explicitly applies to defenses arising from laws that prevent a lender from pursuing a deficiency claim against a guarantor. To find otherwise would restrict the waiver beyond its plain meaning. The trial court, therefore, properly granted summary judgment to RES-GA.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

        Community & Southern Bank v. DCB Investments, 328 Ga. App. 605 (760 SE2d 210) (2014) (punctuation and footnote omitted).

       Id. at 605-606.

       See RES-GA LJY v. South Crestview Drive, 326 Ga. App. XXIII (March. 10, 2014) (unpublished); RES-GA LJY v. Y D. I., Inc., 322 Ga. App. 607 (745 SE2d 820) (2013).

        PNC Bank v. Smith, 298 Ga. 818, 824 (3) (b) (785 SE2d 505) (2016). See also DCB Investments, supra at 613-614 (2) (guarantor may waive confirmation requirement); HWA Properties v. Community & Southern Bank, 322 Ga. App. 877, 887-888 (2) (b) (746 SE2d 609) (2013) (same).

        PNC Bank, supra.

       See OCGA § 10-7-20 et seq.

       See OCGA § 10-7-1 (‘‘The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit or indulgence or other benefit given to his principal.”). See also OCGA § 11-1-201 (b) (39) (for purposes of the commercial code, the term “surety” includes “a guarantor or other secondary obligor”).

       OCGA § 10-7-3.

        Citrus Tower Boulevard Imaging Center v. David S. Owens, MD, PC, 325 Ga. App. 1, 5 (1) (752 SE2d 74) (2013) (punctuation, footnote and emphasis omitted).

       See id. at 8 (2) (a contract is not ambiguous —• and must be enforced according to its plain terms — “where, examining the contract as a whole and affording the words used therein their plain and ordinary meaning, the contract is capable of only one reasonable interpretation”) (punctuation and footnote omitted).

       See Dyson v. Washington Telephone Co., 157 Ga. 67, 83 (121 SE 105) (1923) (appellee’s restrictive reading of contract unreasonable where nothing in contract language limited provision in manner advocated by appellee). See also PNC Bank, supra (permitting waiver of a confirmation defense “creates an appropriate balance between the statutory protections of the confirmation statute and the freedom of a guarantor to enter contracts deemed beneficial”).

       See DCB Investments, supra (guarantors waived confirmation defense where, under guaranty, they were responsible for deficiency following foreclosure sale, regardless of whether borrower was discharged pursuant to statute or judicial decision).


author: Branch, Judge.

text:
    A15A2292.
    MATHIS v. THE STATE.
    (784 SE2d 98)
   Branch, Judge.

After Cecil Wade Mathis, Jr., pled guilty in Washington County Superior Court to two counts of violating OCGA § 16-13-30 (a), the trial court imposed a recidivist sentence pursuant to OCGA § 17-10-7 (c). Mathis now appeals pro se from the trial court’s denial of his motion to vacate or modify his sentence, arguing that the trial court erred in sentencing him as a recidivist. In support of this claim, Mathis relies on OCGA § 17-10-7 (b. 1), which makes the recidivist sentencing statute inapplicable to cases involving certain drug offenses, including violations of OCGA § 16-13-30 (a). We agree that the trial court erred in sentencing Mathis, and we therefore reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.

“Because this appeal involves a question of law, we review both the record and the decision of the court below de novo.” Johnson v. Allied Recycling, 323 Ga. App. 427 (746 SE2d 728) (2013) (citation and punctuation omitted). The facts are undisputed and show that during a traffic stop in October 2013, police discovered methamphetamine and the prescription drug Vyvanse in Mathis’s car. Police arrested Mathis, who was subsequently indicted on a number of charges, including two counts of possession of a controlled substance, in violation of OCGA § 16-13-30 (a). Following Mathis’s indictment, the State filed notice of its intent to seek recidivist sentencing. The prior felonies set forth in the notice included a 1987 conviction for the sale of marijuana, a 1994 conviction for the manufacture of marijuana, and a 1994 conviction for criminal intent to commit an escape. Before trial, Mathis entered a negotiated guilty plea, pursuant to which he pled guilty to both counts of violating OCGA § 16-13-30 (a) and to two traffic violations. At the plea hearing, the State recommended that Mathis be sentenced as a recidivist under OCGA § 17-10-7 (c) based upon the three earlier felony convictions of which the State had given notice. OCGA § 17-10-7 (c), in turn, provides:

Except as otherwise provided in subsection (b) or (b.l) of this Code section . .., any person who, after having been convicted under the laws of this state for three felonies ..., commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

The trial court accepted the State’s sentencing recommendation, and on February 28, 2014, it sentenced Mathis to three years on each of the possession counts with the sentences to run consecutively. Approximately six months later, Mathis filed a pro se motion to modify his sentence, to which he attached a copy of OCGA § 17-10-7 (b.l). That Code section, which became effective on July 1, 2012, provides in relevant part that the recidivist sentencing provision foundinOCGA § 17-10-7 (c) is inapplicable to certain offenses involving the simple possession of controlled and counterfeit substances or the possession, manufacture, sale, delivery, or distribution of marijuana. Specifically, OCGA § 17-10-7 (b.l) provides that recidivist sentencing “shall not apply to a second or any subsequent conviction for any violation of subsection (a), [] paragraph (1) of subsection (i), [] or subsection (j)[] of Code Section 16-13-30.” Mathis argued that because two of the prior felony convictions relied on by the State in seeking recidivist sentencing were for violations of OCGA § 16-13-30 (j), those convictions could not be used to sentence him as a recidivist for violations of OCGA § 16-13-30 (a).

The trial court denied Mathis’s motion, finding that OCGA § 17-10-7 (b.l) bars recidivist sentencing for simple possession and marijuana-related offenses only where a defendant is convicted two or more times of violating the exact same subsection of OCGA § 16-13-30. In other words, the trial court read the sentencing statute as meaning that recidivist sentencing could not apply to a second or subsequent conviction for violating OCGA § 16-13-30 (a); or to a second or subsequent conviction for violating OCGA § 16-13-30 (i) (1); or to a second or subsequent conviction for violating OCGA § 16-13-30 (j). Thus, the court concluded that because Mathis had never been convictedpreviouslyofviolatingOCGA § 16-13-30(a), OCGA § 17-10-7 (b.l) permitted the court to use Mathis’s prior convictions under OCGA § 16-13-30 (j) to sentence him as a recidivist for his first two violations of that Code section.

On appeal, Mathis argues that the trial court misinterpreted OCGA § 17-10-7 (b.l) because it failed to give effect to that part of the statute which provides that recidivist sentencing “shall not apply to a second or any subsequent conviction for any violation of” subsections (a), (i) (1), or (j) of OCGA § 16-13-30. (Emphasis supplied.) And when read in its entirety, Mathis contends, OCGA § 17-10-7 (b.l) means that a defendant who has been convicted previously of violating either subsection (a) or subsection (i) (1) or subsection (j) of OCGA § 16-13-30 may not be sentenced as a recidivist for a second or any subsequent conviction for violating any of those Code sections — even if the defendant had never been convicted previously of violating the exact subsection for which he is being sentenced. We agree.

In determining the meaning of OCGA § 17-10-7 (b.l), we bear in mind that “[t]he cardinal rule” of statutory construction “is to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.” RadioShack Corp. v. Cascade Crossing II, 282 Ga. 841, 843 (653 SE2d 680) (2007) (citation and punctuation omitted). See also OCGA § 1-3-1 (a) (“[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy”). With respect to the legislature’s intent,

we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted). Additionally, we must “ ‘construe statutes to give sensible and intelligent effect to all of their provisions and to refrain from any interpretation which renders any part of the statutes meaningless.’ ” McNair v. State, 326 Ga. App. 516, 519 (757 SE2d 141) (2014), quoting R. D. Brown Contractors v. Bd. of Ed. of Columbia County, 280 Ga. 210, 212 (626 SE2d 471) (2006). “Applying these principles, if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” Deal, 294 Ga. at 173 (1) (a).

Moreover, to the extent that OCGA § 17-10-7 (b.l) can be seen as ambiguous, both the applicable rules of statutory interpretation and the rule of lenity require that we resolve that ambiguity in favor of Mathis and against the State. “ ‘[C]riminal statutes are construed strictly against the State, . . . and their operation should not be limited or extended by application of subtle and forced interpretations.’ ” Barber v. State, 316 Ga. App. 701, 703, n. 5 (730 SE2d 176) (2012), quoting Perkins v. State, 277 Ga. 323, 325-326 (2) (588 SE2d 719) (2003) (construing OCGA § 17-10-7 (c) against the State and refusing to apply recidivist sentencing). See also Vines v. State, 269 Ga. 438, 438-439 (499 SE2d 630) (1998) (where a criminal statute “is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted”) (citation and punctuation omitted). Additionally, as our Supreme Court has previously explained, under the rule of lenity, “where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered.” Dixon v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004) (punctuation and footnote omitted). See also McNair v. State, 293 Ga. 282, 283-284 (745 SE2d 646) (2013) (“[t]he rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment”). Bearing these principles in mind, we turn to the statutory language at issue.

We begin with the fact that OCGA § 17-10-7 (b.l) uses the word “or” as a disjunctive. When so used, the word “or” is usually interpreted as being inclusive, thereby expanding the statute’s coverage. See Gearinger v. Lee, 266 Ga. 167, 169 (2) (465 SE2d 440) (1996) (applying a statute addressing probation violations and holding that the statute’s use of the term “or” expanded the conduct covered thereunder); United States v. Popkin, 943 F2d 1535, 1538 (11th Cir. 1991) (interpreting the use of the broad disjunctive “or” as inclusive, expanding the conduct that could violate the statute). See generally Reiter v. Sonotone Corp., 442 U. S. 330, 339 (99 SCt 2326, 60 LE2d 931) (1979) (“[cjanons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise”). We therefore conclude that the legislature’s use of the disjunctive in OCGA § 17-10-7 (b.l) reflects its desire to expand, rather than limit, the statute’s coverage.

Additionally, as noted above, OCGA § 17-10-7 (b.l) provides that recidivist sentencing “shall not apply to a second or any subsequent conviction for any violation” of subsections (a), (i) (1), or (j) of OCGA § 16-13-30. The normal meaning attributed to “any,” in turn, includes “no matter which ... whichever, of whatever kind.” Compact Oxford English Dictionary, 538 (2d ed. 1991). See also http://www.merriam~ webster.com/dictionary/any (defining “any” as “one or some indiscriminately of whatever kind”); Black’s Law Dictionary, 86 (5th ed. 1979) (defining “any” as “one indiscriminately of whatever kind or quantity”). Given the commonly understood meaning of “any,” the statute’s reference to “any violation” of OCGA § 16-13-30 (a), (i) (1), or (j) supports the conclusion that a defendant who has been convicted previously of violating either subsection (a) or subsection (i) (1) or subsection (j) of OCGA § 16-13-30 may not be sentenced as a recidivist for a second or subsequent conviction for violating any of those Code sections, regardless of whether the defendant has been convicted previously of violating the exact subsection for which he is being sentenced.

In light of the foregoing, and applying the principle that OCGA § 17-10-7 (b.l) must be construed strictly against the State, we find that Mathis’s interpretation of OCGA § 17-10-7 (b.l) is the correct one. Accordingly, recidivist sentencing is not allowed where a defendant has previous convictions for violating subsection (i) (1) (simple possession of a counterfeit substance) or subsection (j) (marijuana-related offenses) and is thereafter convicted of simple possession of a controlled substance (subsection (a)). We therefore find that the trial court erred in sentencing Mathis as a recidivist, and we reverse the trial court’s order denying Mathis’s motion to vacate or modify his sentence. The case is remanded for further proceedings consistent with this opinion.

Decided March 16, 2016.

Cecil W. Mathis, Jr., pro se.

S. Hayward Altman, District Attorney, Tony A. May, Assistant District Attorney, for appellee.

Judgment reversed and case remanded with direction.

Andrews, P. J., and Miller, P. J., concur.

       A violation of OCGA § 16-13-30 (j) (1).

       Also a violation of OCGA § 16-13-30 (j) (1).

       The two traffic violations were failure to maintain lane and having an open container of alcohol in his car.

       Mathis’s motion was timely because a trial court “retains jurisdiction to correct a void sentence at any time.” Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010) (citation and punctuation omitted). And “[a] sentence is void if the court imposes punishment that the law does not allow.” Id. (citation and punctuation omitted).

       OCGA § 16-13-30 (a) makes it illegal “for any person to purchase, possess, or have under his or her control any controlled substance.”

       OCGA § 16-13-30 (i) (1) makes it illegal “for any person to possess or have under his or her control a counterfeit substance.”

       OCGA § 16-13-30 (j) (1) makes it illegal “for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana,” while OCGA § 16-13-30 (j) (2) provides that any of the offenses specified in subsection (j) (1) constitutes a felony.

       We note that the rule of lenity is usually applied in those cases where the defendant’s conduct is punishable under two different criminal statutes. See McNair, 293 Ga. at 285 (conduct punishable under either the financial-transaction theft statute or the identity-theft statute); Dixon, 278 Ga. at 7 (1) (d) (conduct punishable as either aggravated child molestation or statutory rape). As best we can tell from the current record, the conduct at issue in this case could only be prosecuted under OCGA § 16-13-30 (a). We find, however that the concerns underlying the rule of lenity also exist where a court is trying to determine whether the legislature intended that certain convictions be subject to recidivist sentencing. See Dixon, 278 Ga. at 7 (1) (d) (noting that the rule of lenity “derives from the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should”) (punctuation and footnote omitted).

       When looking for the generally understood or common meaning of a particular word, courts most often look to dictionary definitions. See, e.g., Abdel-Samed v. Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014); Warren v. State, 294 Ga. 589, 590-591 (755 SE2d 171) (2014).

       We note that a defendant convicted of violating subsection (a), subsection (i) (1), or subsection (j) of OCGA § 16-13-30 could be sentenced as a recidivist if the prior felony convictions relied on by the State were for anything other than simple possession or marijuana-related offenses.


text:
    A15A2400.
    PROPHITT v. THE STATE.
    (784 SE2d 103)
   Branch, Judge.

An Echols County grand jury indicted Jason Prophitt on a single count of child molestation. A jury found Prophitt guilty of this crime, and Prophitt now appeals his conviction, arguing that the evidence was insufficient to convict him of child molestation. For reasons explained more fully below, we agree with Prophitt, and we therefore reverse his conviction.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence, and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that in November 2012, Prophitt was living with his then-wife, Sonya, and the couple’s daughter, V. P, who at the time was ten years old. During the week of Thanksgiving 2012, V. P.’s friend, C. D., was spending the night at the Prophitt home. After his wife went to bed, Prophitt told the girls that each of them had to shower before going to bed, and that whoever took the longest shower would get a prize. There was only one bathroom in the house, and on the evening in question there was no shower curtain in place. According to both V. P. and C. D., Prophitt told them that the curtain was dirty and was being laundered. Each girl also testified that Prophitt instructed her to shower while facing the door to minimize the amount of water that would spill onto the floor.

During the time C. D. was in the shower, Sonya Prophitt woke up and heard crying coming from behind her daughter’s bedroom door. When Sonya went to check on V. P., she learned that her daughter was upset because Prophitt had made her go to bed and would not allow her to stay up and wait for C. D. to finish her shower. After Sonya left V. P.’s room, she went into the kitchen and discovered the back door standing open. Sonya went to the door and saw that the pants her husband had been wearing earlier in the day were on a table on the back porch, near the washer and dryer. Sonya then noticed that a piece of siding was off the house, near where the bathroom was located, exposing a large open area under the house. She retrieved a flashlight to investigate further, and when she bent down and shined the light into the open area, Sonya saw Prophitt sitting on the ground, staring through a hole in the floor of the house. Prophitt’s boxer shorts were down, he had his penis in his hand, and he appeared to be masturbating. When Sonya shouted at Prophitt, he pulled up his underwear and followed her into the house, telling her “that he was sick and . . . needed help.”

Sonya called C. D.’s parents, who came and took C. D. home. Sonya then took V. P, and they drove to the home of friends, where Sonya called the police. Brian Hancock, a deputy with the Echols County Sheriff’s Department, responded to Sonya’s call and took a report of the incident in the early morning hours of November 25, 2012. That evening, Hancock accompanied Sonya to the family home to investigate the incident. At the house, Hancock observed a hole, approximately one inch long and one-half inch wide, in the floor of the bathroom. When Hancock arrived, there was a piece of cushion-like foam wedged in the hole, which Hancock found could be removed and replaced easily. According to Hancock, anyone looking through the hole from underneath the house would have a direct view of the shower.

Hancock also observed the open area underneath the house that was exposed when the siding near the bathroom was removed. Hancock stated that the ground directly beneath the hole looked different from the rest of the ground underneath the house. Specifically, Hancock thought that the ground below the bathroom looked as though someone had been sitting there, and he observed what he described as a “butt print” on that part of the ground. The investigator from the sheriff’s department who subsequently photographed the scene testified that the distance between the shower and the ground below the hole in the shower floor was approximately seven to eight feet.

Following the police investigation, Prophitt was indicted on a single count of child molestation. The indictment alleged that Prophitt “committed an immoral and indecent act in the presence of [C. D.], a child under the age of sixteen (16) years... by fondling his penis and masturbating while watching said child take a shower through a hole in the bathroom floor [sic]____” Following the close of the State’s case at trial, Prophitt moved for a directed verdict of acquittal, arguing that the State had failed to prove that he had engaged in any immoral or indecent act in C. D.’s “presence.” The trial court denied that motion, but noted that the question of whether a child’s “presence” is established under circumstances such as those in Prophitt’s case had not yet been decided by Georgia’s appellate courts. The jury found Prophitt guilty of the charged crime, and the trial court entered judgment on that verdict. Prophitt now appeals his conviction.

Prophitt argues that the trial court erred both in denying his motion for a directed verdict of acquittal and in entering the judgment of conviction because the evidence was insufficient to convict him of child molestation. With respect to these claims of error,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In determining that question, we consider the inferences that can be logically derived from the evidence presented at trial. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

King v. State, 325 Ga. App. 777, 781 (1) (755 SE2d 22) (2014) (citation and punctuation omitted). See also Dorsey v. State, 279 Ga. 534, 542 (3) (615 SE2d 512) (2005) (“[t]he standard for reviewing a denial of a motion for a directed verdict of acquittal is the same test to be used when the sufficiency of the evidence is challenged”) (citations omitted).

Prophitt was charged with violating OCGA § 16-6-4 (a) (1), which provides: “A person commits the offense of child molestation when [he] [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or [himself].” (Emphasis supplied.) The question in this case is whether Prophitt, who had situated himself outside of and underneath the house where C. D. was showering, was “in the presence of” C. D. at the time he engaged in his immoral or indecent acts. As the parties acknowledge in their briefs, there are a limited number of cases that have addressed the question of when a defendant is “in the presence of” a child, as that term is used in OCGA § 16-6-4. The only case in which the Supreme Court of Georgia has addressed this issue, Vines v. State, 269 Ga. 438 (499 SE2d 630) (1998), considered whether the child molestation statute could apply to an adult’s conduct in engaging in a sexually explicit telephone conversation with an adolescent. The court concluded that such conduct was not prohibited by OCGA § 16-6-4, finding that the statute’s requirement that an immoral or indecent act be done to, with, or in the presence of a child meant “that the victim and accused must be together in order for the crime of ‘child molestation’ to be committed.” Vines, 269 Ga. at 439. In reaching this conclusion, the court noted that an accused and an alleged victim “necessarily are together in order for an immoral or indecent act, such as exposure by the accused, to be committed ‘in the presence’ of the child.” Id. The courtthereforereversedthedefendant’sconvictionunderOCGA § 16-6-4, finding that child molestation could not occur where “the only contact between the accused and the alleged victim was by telephone.” Id. at 438.

A decade later, this Court applied Vines and held that the defendant’s use of a webcam to provide live images of himself masturbating to what he believed was a 15-year-old girl did not constitute child molestation, as the defendant was not in the presence of the child when he engaged in the inappropriate conduct. Selfe v. State, 290 Ga. App. 857, 860-861 (1) (660 SE2d 727) (2008), disapproved in part on other grounds, Gordon v. State, 334 Ga. App. 633 (780 SE2d 376) (2015). Noting that the accused and the victim were in separate locations at the time the transmission occurred, we concluded that the State could not show that the accused was in the presence of the child. Selfe, 290 Ga. at 861 (1).

In a series of cases, this Court has made clear that the presence element of child molestation is satisfied where the accused and the victim were in close physical proximity (such as in the same room or on the same piece of furniture) and the defendant was aware of the child’s presence at the time he committed the immoral or indecent act at issue. See Clemens v. State, 318 Ga. App. 16, 21 (3) (733 SE2d 67) (2012) (defendant was in the presence of the child when he entered and masturbated in the same bed in which the victim was sleeping and it appeared as though he was rubbing his genitals on the child); Jordan v. State, 317 Ga. App. 160, 164 (1) (b) (730 SE2d 723) (2012) (defendant committed an immoral and indecent act in the presence of a child when he watched pornography in a room during the time the victim was wandering in and out of the room; the defendant was aware that the child was coming into and out of the room and he was therefore aware of the victim’s presence in the room during some of the time he was watching pornography); Klausen v. State, 294 Ga. App. 463, 465 (1) (669 SE2d 460) (2008) (presence element of child molestation statute satisfied where defendant masturbated while sitting on sofa and there was some evidence from which jury could infer that defendant was aware child was sitting on the opposite end of the sofa); Arnold v. State, 249 Ga. App. 156, 158 (1) (a) (545 SE2d 312) (2001) (defendant who exposed himself while standing in doorway to his home, directly in front of the victim, while the victim remained outside and just over the threshold, was in the presence of the victim).

Moreover, in both Clemens and Klausen, we held that even though the alleged victim was or may have been unaware of the defendant’s inappropriate conduct, that fact did not take the defendant outside of the child’s presence. Instead, we found that the presence element was satisfied because the evidence showed that the defendant was aware of the child’s physical proximity to him and proceeded to engage in the inappropriate conduct either in spite of or because of the child’s presence. See Clemens, 318 Ga. App. at 21 (3) (defendant was in the presence of the child even though victim remained asleep as the defendant masturbated in her bed while kneeling over or next to her; the evidence showed that the defendant had deliberately chosen that location and the jury could infer that he did so because the child’s presence helped to gratify his sexual desires, and the fact that child'was unaware of defendant’s conduct did not make that “conduct any less culpable under Georgia law”); Klausen, 294 Ga. App. at 465 (1) (the defendant’s actions in masturbating while sitting on sofa and while aware that the child was sitting on the opposite end of the sofa were made “no less culpable because the child may not have been fully aware of what was occurring”). See also Arnold, 249 Ga. App. at 158 (1) (a) (affirming defendant’s conviction for child molestation even though victim had turned her head to avoid seeing the defendant’s genitals when he exposed himself; “[ajlthough a strict construction of [the child molestation] statute requires that the perpetrator perform the immoral or indecent act in the child’s presence, we are aware of no authority which requires the child to observe the entire act”) (footnote omitted).

In its brief, the State relies on all of the foregoing cases to support its argument that Prophitt was in C. D.’s presence as he clandestinely observed her while fondling himself. Specifically, the State argues that although Prophitt was situated outside of and underneath the house, he was actually only seven to eight feet away from C. D. and was therefore in close physical proximity to her. Additionally, the State contends that the fact that C. D. was unaware of both Prophitt’s presence and his conduct did not mean Prophitt was outside the child’s presence. We agree with the State that C. D.’s lack of knowledge as to Prophitt’s conduct would not take Prophitt out of C. D.’s presence if he was otherwise in immediate physical proximity to the child. What the State’s argument fails to acknowledge, however, is that Prophitt and C. D. were not in each other’s immediate physical presence. And that fact, together with C. D.’s lack of knowledge as to Prophitt’s conduct, leads us to conclude that Prophitt was not in C. D.’s presence for purposes of OCGA § 16-6-4.

The only case in which we have found that the presence element of OCGA § 16-6-4 is satisfied despite the lack of immediate physical proximity between the accused and the victim is Rainey v. State, 261 Ga. App. 888 (584 SE2d 13) (2003). In that case, the victim saw Rainey fondling himself as she exited her school bus. At that time, Rainey was standing in front of an open window at his house, and he and the victim were approximately 200 feet apart. 261 Ga. App. at 888. The victim went to her house, reported the defendant’s conduct to her mother, and then proceeded to a window with a view of Rainey’s home. Id. At this point, the victim was approximately 100 feet away from Rainey. Id. at 889. When he saw the victim at her window, Rainey, who had been sitting away from the window in his home, stood and returned to that window wearing only a shirt. Id. He then proceeded to fondle himself and appeared to be masturbating, and at one point he stuck both his genitals and his hand outside of the window. Id. As the victim explained during her trial testimony, “it looked like [Rainey] wanted somebody to see or something.” Id.

Rainey was subsequently convicted of child molestation for having committed an indecent or immoral act in the presence of a child. On appeal, Rainey argued that the physical distance between the victim and him meant that he was not in the presence of the victim at the time he engaged in the inappropriate conduct. We rejected that argument, finding “no basis to hold that there is a specific limit to how far away someone can be before they can no longer be considered to be ‘in the presence of’ a child where the child can see the person and the person is aware of the presence of the child.” Rainey, 261 Ga. App. at 890 (1) (emphasis supplied). Thus, we affirmed Rainey’s conviction, finding that the evidence supported the conclusion “that Rainey was aware of the victim’s presence and that he sought to expose himself to her for the purpose of satisfying his own sexual desires.” Id. In other words, the evidence showed that Rainey’s conduct was motivated, at least in part, by his knowledge both that the child was close enough to observe his obscene behavior and that the child was in fact observing that conduct.

Unlike any of the foregoing cases, the defendant and the victim in this case were not in each other’s immediate physical presence; the victim was unaware that the defendant was in a position where he could observe her; and the victim was unaware either that the defendant was observing her or that he was engaging in sexual conduct while doing so. Under these circumstances, we must conclude that Prophitt was not in C. D.’s presence at the time he engaged in his obscene conduct.

As noted above, the Supreme Court of Georgia has made clear that for child molestation to occur, the accused and the victim must be “together” at the time of the alleged crime. And as the foregoing cases demonstrate, for an accused and victim to be together, they must be in the same location •— i.e., they must be in close enough physical proximity that they each would at least have the opportunity to observe the other — regardless of whether the child actually does observe the defendant’s conduct. See Clemens, 318 Ga. App. at 21 (3); Klausen, 294 Ga. App. at 465 (1); Rainey, 261 Ga. App. at 890; Arnold, 249 Ga. App. at 158 (1) (a).

Here, the evidence showed that although there may have been a distance of only seven to eight feet from the shower to the area under the house where Prophitt had situated himself, the relatively short distance did not place Prophitt in immediate physical proximity to C. D. Instead, there was a significant physical barrier between the two, in the form of the bathroom floor. Thus, to be in C. D.’s immediate physical presence, it would have been necessary for Prophitt to crawl out from underneath the house, enter through the back door, walk down the hallway, and open the bathroom door.

Additionally, Prophitt made no effort to expose himself to C. D. or to make the child aware of his presence. To the contrary, Prophitt went to some lengths to secrete himself away from both the victim and the members of his household in a concerted effort to remain undetected. And given the size and location of the hole, it would have been physically impossible for C. D. to see Prophitt while she was showering. Finally, the evidence showed that C. D. was not aware either that Prophitt was observing her or that he was engaging in an indecent act while doing so. Under these circumstances, we cannot say that Prophitt engaged in an immoral or indecent act while in the presence of C. D.

Our conclusion in this regard is reinforced by the fact that “[a]s a criminal statute, OCGA § 16-6-4 (a) must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.” Vines, 269 Ga. at 438-439 (citation and punctuation omitted). Two principles underlie this requirement of strict construction. First, when interpreting a criminal statute, courts must be mindful of the Due Process Clause, which forbids criminal statutes that are overly vague. See Hall v. State, 268 Ga. 89, 92-93 (2) (485 SE2d 755) (1997). Such vagueness may exist where the statute fails “to provide notice sufficient to enable ordinary people to understand what conduct it prohibits or requires,” or where the statute is so vague that it could authorize or encourage the State to enforce it selectively. Santos v. State, 284 Ga. 514, 514 (1) (668 SE2d 676) (2008). Courts, therefore, must avoid interpreting criminal statutes so broadly that they create vagueness concerns that would not exist if the statute were interpreted narrowly. Second, an overly-expansive interpretation of a criminal statute poses the possibility that the judicial branch will extend a particular Code section to encompass conduct that the legislature did not intend to punish thereunder. A narrow construction of criminal statutes, therefore, allows us to avoid extending the operation of those statutes “by application of subtle and forced interpretations.” Perkins v. State, 277 Ga. 323, 326 (2) (588 SE2d 719) (2003) (citation and punctuation omitted).

Construing a statute narrowly, in turn, requires that we read the Code provision in question “according to the natural and obvious import of [its] language.” Perkins, 277 Ga. at 325 (2) (citation and punctuation omitted). See also OCGA § 1-3-1 (b) (“[i]n all interpretations of statutes, the ordinary signification shall be applied to all words”)•, Abdel-Samed v. Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014) (when found in a statute, a commonly used word “must be given its ordinary meaning”). Thus, in determining the meaning of “presence,” as used in the child molestation statute, we must afford that word its generally understood meaning. Put another way, “we must read the [word ‘presence’] in its most natural and reasonable way, as an ordinary speaker of the English language would.” May v. State, 295 Ga. 388, 391 (761 SE2d 38) (2014) (citation and punctuation omitted).

When looking for the generally understood or common meaning of a particular word, courts most often look to dictionary definitions. See, e.g., Abdel-Samed, 294 Ga. at 763 (2); Warren v. State, 294 Ga. 589, 590-591 (1) (755 SE2d 171) (2014). The Oxford English Dictionary defines “presence” as “[t]he fact or condition of being present; the state of being with or in the same place as a person or thing; attendance, company, society, or association.” Compact Oxford English Dictionary, 1420 (2d ed. 1991). Webster’s Dictionary offers a similar definition, defining “presence” as “the fact of being in a particular place: the state of being present; the area that is close to someone; someone or something that is seen or noticed in a particular place, area, etc.” http://www.merriam-webster.com/dictionary/presence. Finally, Black’s Law Dictionary defines “presence” as “[tjhe quality, state, or condition of being in a particular time and place, particularly with reference to some act that was done then and there [;] [or] [c]lose physical proximity coupled with awareness.” Black’s Law Dictionary, 1374 (10th ed. 2014). These definitions show that presence is commonly understood as referring to a person who is in the same place or location at the same time as another person or thing. This meaning, in turn, is the same one the Supreme Court of Georgia afforded the term “presence” when it found that OCGA § 16-6-4 requires that the accused and the victim be together at the time of the alleged crime. Vines, 269 Ga. at 439. Thus, applying both Vines and the commonly understood meaning of “presence,” and complying with the requirement that we construe OCGA § 16-6-4 so as to limit criminal liability, we must conclude that Prophitt was not in C. D.’s presence when he engaged in the conduct at issue. In short, that conduct, while reprehensible, did not constitute child molestation.

In light of the relevant case law, and “[i]n accordance with the applicable rules of statutory construction,” we must conclude that Prophitt was not in C. D.’s presence when he committed the indecent and immoral acts in question. Vines, 269 Ga. at 440. As a result, Prophitt’s conduct “is not within the ambit of OCGA § 16-6-4 (a).” Id. Accordingly, we are constrained to reverse Prophitt’s conviction for child molestation.

Decided March 16, 2016

J. Converse Bright, for appellant.

J. David Miller, District Attorney, Jessica W. Clark, Catherine H. Helms, Assistant District Attorneys, for appellee.

Judgment reversed.

Andrews, P. J., concurs. Miller, P. J., concurs in judgment only.

       The trial court sentenced Prophitt to fifteen years, with the first six years to be served in incarceration and the balance to he served on probation.

       The record shows that the hole in question was not large enough to permit either Prophitt or C. D. to reach through it and that there was no other means of access from underneath the house into the bathroom.

       We note that Prophitt’s conduct could have subjected him to prosecution for criminal invasion of privacy. See OCGA § 16-11-62. The Code defines the crime of invasion of privacy to include a defendant’s conduct in “go[ing] on or about... any private place ... for the purpose of invading the privacy of others by... secretly observing their activities [.]” OCGA § 16-11-62 (3). The Code further defines “private place” as any place “where there is a reasonable expectation of privacy.” OCGA § 16-11-60 (3).
      The crime of invasion of privacy constitutes a felony, see OCGA § 16-11-69, and this Court has previously held that the conduct of a parent, guardian, or other adult in filming or observing a minor while the minor is in a state of undress in either her bedroom or bathroom violates OCGA § 16-11-62. See Price v. State, 320 Ga. App. 85, 86 (2) (738 SE2d 289) (2013) (affirming conviction of criminal invasion of privacy where evidence showed defendant had clandestinely videotaped his stepdaughter while she was nude in her bedroom); Snider v. State, 238 Ga. App. 55, 57-58 (1) (b) (516 SE2d 569) (1999) (evidence showing that father stood in back yard of family home while nude and holding his penis while attempting to observe his teenage daughter through her bedroom window as she undressed supported father’s conviction for criminal invasion of privacy); Kelley v. State, 233 Ga. App. 244, 249 (2) (503 SE2d 881) (1998) (affirming conviction of teenager’s legal guardian for criminal invasion of privacy where evidence showed guardian had photographed teenager after teen had passed out in the bathroom while nude). Unfortunately, the State declined to charge Prophitt with any crime other than child molestation.