author: Andrews, Judge. BARNES, Presiding Judge, DILLARD, Judge,

text:
    A10A2363.
    In the Interest of J. E., a child.
    (711 SE2d 5)
   Andrews, Judge.

On appeal from a juvenile court’s order terminating a mother’s parental rights as to her child, J. E., the mother argues that the evidence was insufficient in that the record did not show that the child’s state of deprivation was likely to continue or that any continued deprivation would likely cause serious harm. See OCGA § 15-11-94 (b) (4) (A) (iii), (iv). The mother also argues that the trial court failed to take account of the positive relationship between her and the child. We disagree with these contentions and therefore affirm.

Our responsibility as an appellate court is to determine

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

So viewed, the record shows that on September 27, 2006, five days after J. E. was born, the Athens-Clarke County Department of Family and Children Services (“the Department”) filed a complaint alleging that J. E.’s mother, who was homeless at the time, had used cocaine throughout her pregnancy and to induce labor, and that both mother and child had tested positive for cocaine at the child’s birth. In October 2006, the Department filed a deprivation petition. After a hearing at which the mother stipulated to a finding of deprivation, the court awarded custody of J. E. to the Department. In March 2007, the juvenile court adopted the Department’s case plan, which required the mother to secure steady employment and housing, to attend parenting classes, to undergo a psychological evaluation, to visit J. E. twice weekly, to complete a drug-treatment program including random drug screening, and to remain drug- and alcohol-free for six months. A complaint for child support was filed more than a year later, but was not served on the mother because she could not be located. The mother has never paid any child support.

In May 2007, the juvenile court reviewed the case and found that the mother had failed to find employment or housing, that she had dropped out of drug treatment within a month, and that she tested positive for cocaine in five out of six drug screens. In September 2007, the mother pled guilty to a shoplifting charge and was sentenced to 60 days in jail, 12 months probation, and 20 hours of community service, which was to be suspended if she successfully completed a rehabilitation program. After the mother failed to report to her probation officer, however, the state court issued an order to show cause why sentence should not be imposed.

The juvenile court again reviewed the case in June 2008, at which time the mother again consented to a finding of deprivation. Although the mother was in compliance with the drug-treatment program and had tested negative for drugs since January 2008, the juvenile court found that she had not made enough progress with her case plan, including drug treatment and housing, to warrant a change in custody.

The juvenile court held another status hearing on September 12, 2008. With the support of her case manager, J. E.’s mother had returned to Athens and was living in the residential component of an outpatient drug-treatment facility, Advantage Behavior Health Systems Women’s Services (“Women’s Services”), in order to be closer to J. E. The case plan incorporated into the juvenile court’s order indicated that the mother had continued to have regular visitation with J. E. The case plan also noted, however, that the mother was not employed and had no suitable housing. The court again ordered that J. E. remain in her foster home.

In October 2008, the residential component of Women’s Services lost its funding and shut its doors, leaving the mother without shelter. With the support of her case manager, the mother moved into a transitional living facility for recovering addicts called Freedom From Bondage (“FFB”), which required that she obtain employment within two weeks of moving in. FFB’s policy further required that the mother pay a $200 entry fee and rent of $100 a week, attend two twelve-step recovery meetings a week, and abide by a curfew. After one month, the mother was asked to leave FFB because the only employment she was able to find required her to work evening hours in violation of the curfew and because she was unable to pay the entry fee and rent.

From mid-November 2008 through March 2009, J. E.’s mother lived in and out of homeless shelters and drifted between friends’ apartments. Although she worked briefly as a cashier in a grocery store, she was terminated after the balance in her cash register was short for two consecutive days. She was asked to submit to three drug screens but failed to do so.

In March 2009, the mother found employment at a fast-food restaurant but was laid off the following month for absenteeism. In April 2009, as she submitted strands of her hair for a drug test, she confessed to her case manager that she had used cocaine and marijuana since being out of treatment, and as recently as two weeks prior to the test. The test results confirmed the presence of cocaine.

On June 29, 2009, the Department filed a petition for termination of the mother’s parental rights in J. E. The hearing on the petition was held on September 23 and October 23 of that year.

A psychologist had assessed the mother in February 2007, at which time she told him that although she was in outpatient rehabilitation, she needed an inpatient program because it would restrict her freedom and thus her risk of relapse, and that she had been under the influence of drugs during some of her visits to the child. After the mother failed to appear at several scheduled follow-up appointments, she returned for a second session, after which the psychologist concluded that she suffered from cocaine dependence with psychological dependence and that she needed inpatient rather than outpatient treatment.

When asked at the termination hearing about the possibility of relapse in light of the facts that the mother had tested positive for cocaine in April 2009, the psychologist responded: “The single best predictor of future behavior is past behavior, so if we’re having an ongoing pattern of drug abuse or drug dependency, the likelihood is to continue.” When asked about the mother’s failure to obtain a steady job or housing, the psychologist said:

I would answer that similarly. If problems that were present when I first evaluated her continued to be present, . . . those are not good prognostic indicators of the likelihood that they will improve in the near future. I’m not saying that they won’t, just saying that they are not prognostically positive.

Under cross-examination, the psychologist admitted both the relevance of the mother’s present bond with J. E., whom he had never met, and the possibility that the mother could stay sober permanently. But he also confirmed his judgment that the mother would likely be unable to overcome her drug addiction:

She understands what a good parent is, yet she’s not able for some reason, or not willing[,] to make the changes that she prescribes. And so I don’t necessarily judge her on it, but... it sheds a light on how deep her problem[s] with drugs really are. And that shows to me that the April incident of ’09 outweighs today being sober, although today being sober is a good sign and I like to see that.

The guardian ad litem filed her report on the day before the second session of the termination hearing. The guardian reported inter alia that the mother had told her outpatient provider that she had smoked marijuana and inhaled at least a gram of cocaine every day from January through mid-May 2009 and that J. E. was more affectionate with her foster mother than with her natural mother. The guardian concluded that the mother’s parental rights in J. E. should be terminated.

The addiction counselor at the mother’s inpatient service testified that during her residency, the mother had violated a number of policies designed to keep the residents drug-free. In August 2009, only six weeks before the termination hearing, the mother visited an emergency room for a heart complaint, called a man she knew to be a drug dealer to meet her there, and obtained $20 from him. During the same visit to the hospital, the mother complained of neck pain and, without authorization, obtained a prescription, never filled, for muscle relaxers.

Although there was some evidence that J. E. had previously had difficulties with her mother’s visits, the juvenile court heard extensive testimony concerning the positive present relationship between the two, as well as the favorable conditions in the child’s foster home, including that the foster mother wished to adopt her permanently. The juvenile court then found as follows:

In spite of inconsistency in many areas of the mother’s life, she has visited regularly with her child, and they have a positive relationship. [The case manager] testified that the mother and the child interact appropriately and in a healthy way. Two different times during this case, [however, the case manager] was on the verge of requesting overnight visits, but each time, [he] was unable to follow through with his plans because of the mother’s circumstances. The mother is currently unable to provide the necessities of life for the child. The mother is in treatment for the fourth time, and this court would not be able to consider placing the child with her in a treatment program until there was demonstrable progress, which may take months. The child has never lived with this mother, or with any person other than her current foster parent.

(Emphasis supplied.) Later in its order, the juvenile court stated its legal conclusions that continued deprivation was likely, that such deprivation would likely cause serious harm, and that termination was in the best interests of the child. We granted the mother’s application for a discretionary appeal.

1. In order to terminate a parent’s rights as to a child, the juvenile court must find clear and convincing evidence of “parental misconduct or inability” in that

(i) The child is a deprived child, as such term is defined in Code Section 15-11-2;
(ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived;
(iii) Such cause of deprivation is likely to continue or will not likely be remedied; and
(iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

OCGA § 15-11-94 (b) (4) (A). When a child is no longer in the custody of a parent, a court evaluating the question of proper care and control “shall [also] consider” whether the parent

without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent[.]

OCGA § 15-11-94 (b) (4) (C).

(a), (b) The mother does not dispute the juvenile court’s conclusion that J. E. was deprived at the time of the termination hearing and that the deprivation was caused by the mother’s lack of proper parental care or control. In the Interest of P. D. W., 296 Ga. App. 189, 191-193 (1) (a), (b) (674 SE2d 338) (2009) (unappealed finding of deprivation and “further showing” that “the conditions upon which this finding was based still exist at the time of the hearing on the termination petition” was sufficient to show that the child was deprived; failure to complete case plan, to pay child support, and to obtain suitable income or housing for two years until after filing of termination petition was also sufficient to show a lack of parental care or control).

(c) As to whether the “cause of [a child’s] deprivation is likely to continue,” OCGA § 15-11-94 (b) (4) (A) (iii), the question how much weight should be given to a parent’s recent improvements “is a question for the trier of fact. In considering a parent’s claims of recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” (Punctuation and footnote omitted.) In the Interest of A. T. H., 248 Ga. App. 570, 573 (1) (547 SE2d 299) (2001).

The evidence outlined above, including that the mother never paid any child support, never achieved stable housing or employment, was using at least a gram of cocaine a day for five of the nine months before the termination hearing, and initiated contact with a known drug dealer and wrongfully obtained a drug prescription only six weeks before that hearing, was sufficient to sustain the juvenile court’s conclusion that the causes of J. E.’s deprivation were likely to continue. See In the Interest of A. R., 302 Ga. App. 702, 709-710 (1) (c) (691 SE2d 402) (2010) (“even in the absence of an order directing [her] to pay a specific amount,” a mother’s failure to pay child support was “compelling evidence” that she was not an able parent and that the child’s deprivation was likely to continue) (punctuation omitted); In the Interest of K. A. S., 279 Ga. App. 643, 650-651 (1) (b), (c) (632 SE2d 433) (2006) (evidence including that mother “failed to complete two of the most important goals of her case plan, to obtain and maintain a stable, legal income and housing,” was sufficient to show that the deprivation was due to lack of parental care and control and that the causes of the deprivation were likely to continue); In the Interest of M. N. R., 282 Ga. App. 46, 47-48 (637 SE2d 777) (2006) (even assuming that a mother had stopped using drugs by the time of the termination hearing, evidence including her admission that she had not completed a drug treatment program she enrolled in six months before the hearing and had relapsed after completing an earlier program was sufficient to affirm the juvenile court’s judgment that the deprivation was likely to continue).

(d) The juvenile court was also entitled to conclude that the continued deprivation of J. E. was likely to cause serious harm to her.

OCGA § 15-11-94 (b) (4) (A) (iv) demands that the juvenile court determine whether “continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.” In the Interest of A. G., 287 Ga. App. 732, 735-736 (652 SE2d 616) (2007). As we noted some time ago, “it is not automatically true that a finding that deprivation is likely to continue will support a finding that continued deprivation will harm the child.” (Emphasis supplied.) In the Interest of J. T. W., 270 Ga. App. 26, 36-37 (2) (d) (606 SE2d 59) (2004). As the Department points out, however, the same facts authorizing a finding that deprivation is likely to continue may also authorize a finding, under the circumstances of an individual case, that the continued deprivation is likely to cause serious harm. See In the Interest of K. A. S., supra, 279 Ga. App. at 651-652 (1) (d).

[This Court] ha[s] held that evidence of a mother’s repeated failure to remain drug free and her failure to take the steps necessary to reunite with [her child] was sufficient to prove that the continued deprivation would cause the child serious physical, mental, emotional, or moral harm.

(Emphasis supplied.) In the Interest of M. N. R., supra, 282 Ga. App. at 48. Citing In the Interest of K. D. E., 288 Ga. App. 520 (654 SE2d 651) (2007), the mother argues that even if she is unable to care for her child, that fact alone cannot justify termination when the personal relationship between mother and child has remained or become substantially positive. We are not persuaded. The mother in K. D. E. had been drug-free for over two and a half years before the termination hearing in that case, and the child had lived with his mother for five years before being placed in the Department’s care, see id. at 525, whereas this mother had been drug-free for only a few months before the hearing and had never been the child’s primary caregiver since custody was awarded to the Department shortly after J. E.’s birth.

Some might read our whole-court opinion In the Interest of J. K., 278 Ga. App. 564 (629 SE2d 529) (2006), as rejecting any inquiry into the child’s present relationship with the natural parent, or as projecting the question of future harm back to the time and conditions at which the child was found deprived. See id. at 568 (2) (commenting that the present state of the parent-child relationship “is not the issue” before the juvenile court, and that “[t]he only other question [besides the likely continuation of deprivation] is would the children be. harmed by returning to the conditions that resulted in the original removal”). To the extent that J. K. can be read as standing for either of these propositions, it is disapproved. But even as so clarified, our law requires a juvenile court to consider not only the relationship between the parent and child at the time of the termination hearing, but also what might happen if the child were returned to the parent given the likelihood that the deprivation under which the child has been suffering would continue after a reunion with that parent.

“[I]t is well settled that children need permanence of home and emotional stability[,] or they are likely to suffer serious emotional problems.” In the Interest ofR. J. D. B., 305 Ga. App. 888, 895 (700 SE2d 898) (2010). If, as we have held above, this juvenile court was authorized to determine that the deprivation was likely to continue, it was also entitled to determine that no benefits to be obtained from a continuation of the parent-child relationship, however desirable in themselves, were sufficient to protect J. E. adequately from the harmful consequences of the mother’s possible or likely relapse into drug use and/or her continued failure to provide for ber child. The record before us, including the mother’s risk of relapsing into drug addiction, her failure to provide for J. E., and the child’s need for permanence, entitled the juvenile court to draw the conclusion that clear and convincing evidence showed that J. E.’s continued deprivation was likely to cause the child serious harm. OCGA § 15-11-94 (b) (4) (A) (iv); see In the Interest ofR. N, supra, 224 Ga. App. at 202, 204-205 (“any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody ha[d] been lost” where a psychologist predicted that a mother’s pattern of being overwhelmed by the return of her children was likely to repeat itself).

2. Given our holdings above, we are also persuaded that the juvenile court did not err when it concluded that termination of the mother’s parental rights was in the best interest of J. E., considering the child’s physical, mental, emotional, and moral condition and her “need for a secure and stable home.” OCGA § 15-11-94 (a). “The same evidence showing parental misconduct or inability may, and here does, establish this requirement.” (Citation and punctuation omitted.) In the Interest of A. C., 272 Ga. App. 165, 168 (2) (611 SE2d 766) (2005); In the Interest ofM. L. P, 236 Ga. App. 504, 510 (1) (d) (512 SE2d 652) (1999) (juvenile court has broad discretion in determining how the interest of the child is best served).

Judgment affirmed.

Ellington, C. J., Smith, P. J., Miller, P J., Phipps, P. J., Mikell, Adams, Doyle and McFadden, JJ., concur. Blackwell, J., concurs in the judgment and in all divisions except Division 1 (d). Barnes, P. J., concurs specially and in the judgment only. Dillard, J., dissents.

BARNES, Presiding Judge,

concurring specially and in the judg-

ment only.

I concur fully with the majority that the evidence in this case clearly and convincingly supports the juvenile court judge’s decision to terminate the parental rights of J. E.’s mother. However, I do not believe we need to reach the issue of whether to overrule or disapprove the whole-court decision in In the Interest ofJ. K., 278 Ga. App. 564 (629 SE2d 529) (2006). I therefore concur in the majority opinion, but in judgment only.

DILLARD, Judge,

dissenting.

Today, we rightly disapprove our prior whole-court decision in In the Interest of J. K., in which we held that the “only logical inquiry” in evaluating whether a child’s continued deprivation will cause or is likely to cause that child serious harm — within the meaning of OCGA § 15-11-94 (b) (4) (A) (iv) — is whether “the child would be harmed if returned to the parent’s care and control, associated environment, and state of deprivation.” Specifically, the majority holds that J. K. is “disapproved” to the extent that this decision can be read as “rejecting any inquiry into the child’s present relationship with the natural parent, or as projecting the question of future harm back to the time and conditions at which the child was found deprived.” And on this very important point, I am in complete agreement with the majority. Indeed, prior to our curious reasoning in J. K., it was well settled in our termination-of-parental-rights jurisprudence that the nature of the ongoing parental relationship — as it presently exists with the child in the custody of the State — is a highly relevant and important consideration in determining whether the child will be or is likely to be seriously harmed by a continuation of the natural parent-child relationship. Thankfully, as a result of today’s majority opinion, the continuing vitality of this important legal principle is no longer in doubt. For this, the majority is to be commended.

Nevertheless, I part ways with the majority in its flawed understanding of our role as an appellate court reviewing termination orders, as well as its misapprehension of the type of evidence necessary to demonstrate that a child’s continued deprivation will cause or is likely to cause the child serious harm.

As to the former, the majority fails to appreciate that while we are certainly required to view the evidence in the light most favorable to the juvenile court’s termination order, this in no way relieves us of our concomitant constitutional duty to assess — once this deferential examination of the evidence has taken place —whether any rational trier of fact could have found by clear and convincing evidence that the statutory criteria for terminating the natural parent’s rights have been proven by the State. And here, I vigorously contest that the evidentiary record before us contains clear and convincing evidence that the continued deprivation will cause or is likely to cause J. E. serious harm. To the contrary, as explained infra, a holistic examination of the record before us shows that terminating the mother’s rights — and thus permanently and irretrievably severing the natural parent-child relationship — will cause seriously detrimental harm to the child.

At this point, anyone reading this opinion might be silently wondering how there can possibly be such a significant difference of opinion as to the nature of the evidentiary record before us. Such confusion is perfectly understandable, so allow me to explain what I understand to be the reason for this seemingly inexplicable gulf between our respective views of the record. In a nutshell, I believe the crux of the problem is the lens through which the majority has examined the evidentiary record — i.e., its embrace of the J. K. majority’s view (albeit slightly refashioned) that the predominant consideration in evaluating the likelihood of serious harm from continued deprivation is whether the parent is presently capable of taking the child back into custody (see discussion infra). And on this particular point, I could not disagree more with my colleagues.

The overarching question in a termination proceeding is not whether the child has a model parent, or even whether that parent is presently capable of taking his or her child back into custody, but is instead whether the natural parent-child relationship has been irretrievably damaged as a result of the parent’s unwillingness or inability to care for the child — i.e., that the continuation of the natural parent-child relationship, as it presently exists with the child in the custody of the State, is causing or is likely to cause that child serious harm. As our Supreme Court has recently and rightly emphasized, “[o]ne who is subject to the termination of parental rights cannot be equated to an individual who faces an interruption of custody” because termination “is a much more severe measure” that acts as a “remedy of last resort to address the most exceptional situation of a deprived child and that child’s continuing deprivation.” Put another way, it is one thing to remove a child from a parent’s custody for reasons of neglect, but quite another to permanently and irrevocably sever the natural parent-child relationship. And there is a reason for this crucial distinction: Terminating a parent’s rights, and thus forever foreclosing the possibility of restoring the natural parent-child relationship, is governmental extinguishment of the parent and child’s constitutional right to familial relations.

Thus, in applying the constitutionally mandated standard of review and accompanying statutory criteria to termination-of-parental-rights cases, we are bound to do so bearing in mind that under both the United States and Georgia Constitutions, a parent has a fundamental constitutional right to, and liberty interest in, the care, custody, and management of his or her children, and that the State may not infringe upon or sever this fiercely guarded right of familial relations except in the most compelling and extraordinary of circumstances. This is because, as we have repeatedly emphasized, “there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship” and, for this reason, “[i]t must be scrutinized deliberately and exercised most cautiously.” Indeed, as noted supra, regardless of our charge to view the juvenile court’s order in the most favorable light possible, this in no way lessens the State’s burden of proffering compelling facts that demonstrate by clear and convincing evidence that the termination of a parent’s constitutional right to familial relations is clearly justified; nor does it obviate the requirement that a juvenile court’s termination order “contain explicit findings supporting the conclusions that by reason of the deprivation the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” The propriety of a termination order, then, is inextricably intertwined with one of this republic’s oldest and most sacred fundamental liberties — the right to maintain familial relations and integrity.

Unfortunately, I believe this Court has, in recent years, lost sight of the serious constitutional implications that result from a juvenile court’s termination of parental rights, and the majority’s decision to affirm the termination order in the case sub judice evinces this in spades.

Here, the majority provides three grounds for affirming the juvenile court’s determination that J. E.’s continued deprivation, while in the custody of the State, is such that it will or is likely to cause the child serious harm: (1) “the mother’s possible or likely relapse into drug use”; (2) the mother’s “continued failure to provide for [the] child”; and (3) “the child’s need for permanence.” I will address each of these grounds in turn.

First, I have little trouble agreeing with the majority that the mother’s prior drug use and ongoing struggle with cocaine dependency are grave matters, deeply troubling, and have unquestionably caused serious harm to the child in the past (hence the State’s decision to take and maintain custody of the child). And were we reviewing an order denying the mother custody of the child, I would have no hesitation in finding that the mother is not presently capable of fully resuming her parental duties with respect to J. E. But that is not the question before us today. Instead, as noted supra, we are called upon to determine whether a rational trier of fact could have concluded that, at the time termination was sought by the State, there existed clear and convincing evidence that the child would be seriously harmed or was likely to be seriously harmed if the natural parent-child relationship were permitted to continue (i.e., with J. E. in foster placement and her mother having regular visitation). And from my exhaustive examination of the record, I am not aware of any evidence from which a rational trier of fact could have possibly concluded that — while the child remained in the custody of the State — the mother’s past drug use or ongoing struggles with cocaine dependency was causing or was likely to cause J. E. serious harm, so as to justify permanently extinguishing the natural parent-child relationship.

Instead, the undisputed record evidence shows that J. E. is a healthy, well-adjusted child who is thriving in her foster-home placement and who shares a close bond with both her biological and foster mothers. Additionally, J. E.’s mother has — notwithstanding her tragic struggle with cocaine dependency — consistently exercised her visitation with J. E. in a meaningful and productive manner, and the State presented no evidence that J. E. presently suffers — or, for that matter, has ever suffered — any detrimental effects as a result of this visitation schedule or noncustodial relationship with her biological mother. To the contrary, those who observed the mother’s visitations with J. E. testified without contradiction that the child responds positively and enthusiastically to the time she spends with her biological mother, shows no reluctance to attend the visits, and exhibits no fear or reservations toward her biological mother. These individuals also testified, without exception, that J. E.’s mother (1) was consistently prepared for and excited about her visits with J. E., (2) actively engaged with J. E. in meaningful ways, (3) acted appropriately at all times with her daughter during their visits, (4) gave J. E. a great deal of praise and disciplined her appropriately, (5) was very cautious and aware of her surroundings when interacting with J. E., and (6) was very nurturing and loving toward her daughter when they were together. Indeed, after J. E.’s visits with her natural mother, she would say (several times): “I want to stay,” “I don’t want to go bye-bye,” and “I love you mommy.” Moreover, at the time the termination petition was filed, the mother’s treatment team at Women’s Services was prepared to recommend that she be granted additional visitation with J. E., but the team decided not to move forward with that recommendation because the termination petition had already been filed. Finally, the mother’s caseworker testified that J. E. would likely not be negatively impacted by a continuation of the status quo, and the court-appointed special advocate indicated that denying J. E. a relationship with her biological mother would be “detrimental” to the child.

Thus, while I am perfectly willing to concede that the parade of horribles outlined by the majority in describing the mother’s background is deeply troubling, I, nevertheless, remain resolute in my view that the United States and Georgia Constitutions do not permit us to permanently and irrevocably extinguish the natural parent-child relationship without clear and convincing evidence that parental misconduct or inability is causing or is likely to cause the child serious harm. And here, I can only discern two possible reasons for the utter dearth of evidence that the mother’s struggles with drug dependency have negatively impacted her relationship with J. E. in any appreciable manner while the child has been in the custody of the State: (1) the mother has made extraordinary efforts to maintain and strengthen her relationship with J. E., and in the process of doing so shielded the child from any signs of her cocaine dependency during their visits; or (2) the State simply failed to offer any evidentiary basis, beyond mere conjecture, for its assertion that the mother’s struggles with drug dependency (and possible relapse) were likely to cause the child (while in foster placement) serious harm. Suffice it to say, neither explanation supports the majority’s decision to affirm the juvenile court’s termination order.

Additionally, I am likewise unwilling to conclude that a child will be or is likely to be seriously harmed by the continued deprivation — while that child is in the custody of the State — simply because the parent in question is poor and presently unable to financially provide for the child. Thus, while economic considerations unquestionably come into play in making protective-custody determinations, I fail to see how a parent’s present financial inability to care for his or her child can — in the absence of any showing of harm to the child while in the custody of the State — be used as an independent or predominant basis for terminating the natural parent-child relationship. Indeed, we have said as much in our prior decisions by holding that a parent’s mere “inability to care for her children does not necessarily mean that her current relationship with them is detrimental.” We have also held that the State is not permitted to “terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere[,]” but may only do so “under compelling circumstances found to exist by clear and convincing proof!.]” I strongly agree with both of the foregoing lines of this Court’s termination-of-parental-rights jurisprudence because, in my view, using a parent’s poverty as a means of justifying the termination of the natural parent-child relationship is patently unconstitutional in the absence of clear and convincing evidence that the parent’s dire financial circumstances are the result of parental misconduct or inability that is causing or is likely to cause the child serious harm (even while the child is in the custody of the State).

Finally, I am likewise unpersuaded by the majority’s reliance on generalized notions of permanency as a basis for terminating parental rights. While I do not quibble with the general proposition that children need permanency (or, for that matter, the corollary that long-term foster care can have ill effects), I find it troubling that many of our prior decisions upholding the termination of parental rights appear to rely, in part, on such generalizations without specifically tying them to particularized findings of fact, even though we have repeatedly held that a juvenile court is required to make explicit findings of fact that the child at issue — rather than some hypothetical child placed in the subject child’s situation — will suffer or is likely to suffer serious harm as a result of the continued deprivation. As we have previously noted, “[e]ach child in these circumstances deserves [and requires] a full, separate, and thoughtful review by the juvenile court of the issues relating to [her],” and this cannot and will not happen if the child is treated as if she were merely part of some detached hypothetical inquiry — rather than as what she actually is, a human being with inherent dignity and worth.

As the Supreme Court of the United States so eloquently explained in the seminal decision of Santosky v. Kramer, the “fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State,” and “[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” This is because, according to the San-tosky Court, “[e]ven when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life[,]” and “persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.” In so holding, the Santosky Court reasoned as follows:

In parental rights termination proceedings, the private interest affected is commanding-, the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring the standard is comparatively slight. . . . [A] natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. If the State prevails, it will have worked a unique kind of deprivation. ... A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one. . . . Once affirmed on appeal, a . . . decision terminating parental rights is final and irrevocable. Few forms of state action are so severe and so irreversible.

And while the Supreme Court’s holding in Santosky is unquestionably about procedural fairness, there is also a strong substantive component to this decision. Indeed, by imposing a clear-and-convincing standard of proof on the States in termination-of-parental-rights proceedings, the Santosky Court spoke volumes about the level of protection it understands the United States Constitution to afford parental rights in this dire context.

Regrettably, I believe the majority’s decision today, as well as the current state of this Court’s termination-of-parental-rights jurisprudence, is wholly inconsistent with the Supreme Court’s reasoning and holding in Santosky and fails to offer meaningful protection to the parental rights of this State’s socioeconomically disadvantaged citizens. Indeed, contra the majority’s reasoning, the reasoning in Santosky strongly suggests that the nature of the ongoing parent-child relationship is of the utmost importance in determining whether that relationship should be permanently dissolved by the State. And by treating the juvenile court’s inquiry into the nature of the ongoing parent-child relationship as if it were merely one of many factors to consider, the majority (1) fails to acknowledge, in any meaningful sense, the ongoing, vital constitutional interest held by both the parent and child in preserving their natural relationship, notwithstanding its present noncustodial nature; and (2) exponentially increases the likelihood of parental rights being arbitrarily terminated in cases in which there continues to be a strong emotional bond between the parent and his or her child.

Needless to say, I am deeply troubled by this Court’s failure to provide meaningful appellate review in this case, or to safeguard the mother’s constitutional right to familial relations with her daughter against what I consider to be an erroneous termination of their natural parent-child relationship. My sincere hope is that this Court will, in future cases, revisit the degree of emphasis a juvenile court is constitutionally required to place on the ongoing nature of the parent-child relationship when considering whether the continued deprivation will cause or is likely to cause serious harm to the child.

In the final analysis, I believe that any determination that the continued deprivation will or is likely to “cause serious physical, mental, emotional, or moral harm to [a] child” must necessarily include a finding of serious harm or a likelihood of serious harm in maintaining the “uneasy status quo,” and because I find no such harm in the case sub judice, I respectfully dissent.

Decided March 30, 2011

Lisa Lott, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Kathryn A. Pope, for appellee.

       278 Ga. App. 564, 567 (1) (629 SE2d 529) (2006) (emphasis in original).

        Supra, Majority Opinion at 58.

        See In the Interest ofD. L.T.C., 299 Ga. App. 765, 770 (1) (684 SE2d 29) (2009) (holding that a “finding of parental unfitness must be based on present circumstances” (punctuation and footnote omitted)); OCGA § 15-11-94 (a).

        See, e.g., In the Interest of K. D. E., 288 Ga. App. 520, 526 (654 SE2d 651) (2007); In the Interest of A. T, 271 Ga. App. 470, 474 (610 SE2d 121) (2005); In the Interest of J. S. B., 277 Ga. App. 660, 663 (2) (d) (627 SE2d 402) (2006); In the Interest of J. T. W, 270 Ga. App. 26, 36-37 (2) (d) (606 SE2d 59) (2004); In the Interest ofJ. H., 267 Ga. App. 541, 545 (600 SE2d 650) (2004); In the Interest ofJ. H., 258 Ga. App. 211, 216 (573 SE2d 481) (2002); In the Interest of B. E, 257 Ga. App. 76, 78 (570 SE2d 385) (2002) (physical precedent only); In the Interest of B. E, 253 Ga. App. 887, 891 (560 SE2d 738) (2002); In the Interest ofD. E, 251 Ga. App. 859, 862 (555 SE2d 225) (2001); In the Interest ofJ. M., 251 Ga. App. 380, 383 (4) (554 SE2d 533) (2001); In the Interest of K. J., 226 Ga. App. 303, 308 (2) (b) (486 SE2d 899) (1997); In the Interest ofC. T, 185 Ga. App. 561, 564-65 (365 SE2d 117) (1987).

        See, e.g., In the Interest of A. G., 287 Ga. App. 732, 732 (652 SE2d 616) (2007).

        See In the Interest of J. K., 278 Ga. App. at 568 (2) (“The question is whether, if the children were returned to the mother’s care, would they likely suffer serious harm as a result thereof?”).

        In the Interest of A. C., 285 Ga. 829, 833 (2) (686 SE2d 635) (2009) (citations omitted; emphasis supplied).

       Unlike a custody proceeding, the termination of a natural parent’s rights “leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child’s religious, educational, emotional, or physical development.” Lassiter v. Dep’t of Soc. Servs. of Durham County, N.C., 452 U. S. 18, 39 (I) (A) (101 SC 2153, 68 LE2d 640) (1981) (Blackmun, J., dissenting); see also Santosky v. Kramer, 455 U. S. 745, 759 (III) (A) (102 SC 1388, 71 LE2d 599) (1982) (“When the State initiates a parental rights termination proceeding, it seeks not merely to infringe [a] fundamental liberty interest, but to end it.”); id. at 760-61 (“At the factfinding, the State cannot presume that a child and his parents are adversaries. . . . [U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.” (footnote omitted)).

        See Santosky, 455 U. S. at 769-70 (IV).

        See, e.g., Troxel v. Granville, 530 U. S. 57, 65-67 (II) (120 SC 2054,147 LE2d 49) (2000); M. L. B. v. S. L. J., 519 U. S. 102, 116-19 (IV) (117 SC 555, 136 LE2d 473) (1996); Santosky, 455 U. S. at 747-48; Lassiter, 452 U. S. at 27-28 (II) (B); id. at 38-40 (I) (A) (Blackmon, J., dissenting); Parham v. J. R., 442 U. S. 584, 602 (III) (b) (99 SC 2493, 61 LE2d 101) (1979); Quilloin v. Walcott, 434 U. S. 246, 255 (II) (A) (98 SC 549, 54 LE2d 511) (1978); Smith v. Org. of Foster Families for Equality & Reform, 431 U. S. 816, 845 (II) (B) (97 SC 2094, 53 LE2d 14) (1977); Moore v. City of East Cleveland, Ohio, 431 U. S. 494, 503-06 (III) (97 SC 1932, 52 LE2d 531) (1977) (plurality opinion); Wisconsin v. Yoder, 406 U. S. 205, 235 (V) (92 SC 1526, 32 LE2d 15) (1972); Stanley v. Illinois, 405 U. S. 645, 651-52 (II) (92 SC 1208, 31 LE2d 551) (1972); Ginsberg v. New York, 390 U. S. 629, 637-39 (I) (88 SC 1274, 20 LE2d 195) (1968); May v. Anderson, 345 U. S. 528, 533 (73 SC 840, 97 LE 1221) (1953); Prince v. Massachusetts, 321 U. S. 158,165-66 (64 SC 438, 88 LE 645) (1944); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus and Mary, 268 U. S. 510, 534-36 (45 SC 571, 69 LE 1070) (1925); Meyer v. Nebraska, 262 U. S. 390, 398-403 (43 SC 625, 67 LE 1042) (1923); Clark v. Wade, 273 Ga. 587, 593-94 (III), 600 (V) (544 SE2d 99) (2001); id. at 606-08 (Thompson, J., dissenting); Brooks v. Parkerson, 265 Ga. 189, 191-92 (2) (a) (454 SE2d 769) (1995); In re Suggs, 249 Ga. 365, 367 (2) (291 SE2d 233) (1981); Kirkland v. Lee, 160 Ga. App. 446, 455-56 (I), (II) (287 SE2d 365) (1981) (Deen, J., dissenting); see also Doe v. Heck, 327 F3d 492, 517-20 (II) (B) (7th Cir. 2003) (Manion, J.); U. S. Const, amends. IX & XIV; Ga. Const. Art. I, § I, ¶ XXIX.

        In the Interest ofL. J. L., 247 Ga. App. 477,479 (543 SE2d 818) (2001) (punctuation and footnote omitted); see also Thaggard v. Willard, 285 Ga. App. 384, 389 (646 SE2d 479) (2007) (same); In the Interest ofR. C. M., 284 Ga. App. 791, 800 (III) (3) (645 SE2d 363) (2007) (same).

        In the Interest ofK. J., 226 Ga. App. at 306 (1) (citation and punctuation omitted); see also Nix v. Dep’t of Human Res., 236 Ga. 794, 795 (225 SE2d 306) (1976) (“There can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring.”); Sanchez v. Walker County Dep't of Family &c., 237 Ga. 406, 411 (229 SE2d 66) (1976) (“[W]resting a child away from the care and custody of its parents is of serious consequence [and] is so drastic that it should be attended only by the most stringent procedural safeguards.”); In the Interest of D. W., 300 Ga. App. 438, 441 (1) (685 SE2d 311) (2009) (“Termination of parental rights is a remedy of last resort[.]”).

        See Blackburn v. Blackburn, 249 Ga. 689, 692 (2) (292 SE2d 821) (1982) (acknowledging that “freedom of personal choice in matters of family life is a fundamental liberty interest protected by the United States Constitution,” and that “the Due Process Clause of the Fourteenth Amendment demands that before a state may sever the rights of parents in their natural child, the state must support its allegations by at least clear and convincing evidence” (punctuation and emphasis omitted) (citing Santosky)).

        In the Interest ofK. J., 226 Ga. App. at 307 (2) (b) (citation and punctuation omitted); see also id. (holding that “[a] dry recitation that certain legal requirements have been met is insufficient to satisfy the requirements of the law,” and that “[t]he trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached” (citation and punctuation omitted)); In the Interest ofJ. T. W., 270 Ga. App. at 37 (2) (d) (“[I]t is not automatically true that a finding that deprivation is likely to continue will support a finding that continued deprivation will harm the child.”).

        See Moore, 431 U. S. at 503-04 (III) (plurality opinion) (“[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”).

       As an aside, I feel compelled to express my sincere admiration of J. E.’s foster mother, as well as all foster parents, who provide the children entrusted to them by the State with loving and nourishing homes, in which these children of neglect can thrive and reach their full potential.

        See In the Interest ofD. L. T. C., 299 Ga. App. at 765 (noting as a positive in reversing the juvenile court’s termination order that the biological parents were “consistently involved in the process since [their] children were removed from their custody. . . .”).

       J. E.’s mother even expressed an interest in developing a relationship with the foster mother for the sake of the child.

       See In the Interest ofM. S. S., 308 Ga. App. 614, 626 (708 SE2d 570) (2011) (Dillard, J., concurring specially) (rejecting “the majority’s assertion that a natural parent’s rights can be terminated merely because the mother failed to satisfy certain elements of the State’s reunification plan (e.g., securing stable employment and housing), or because she was not financially or emotionally capable of parenting her child at the time of the termination hearing”).

        In the Interest ofj. S. B., 277 Ga. App. at 663 (2) (d) (citation and punctuation omitted; emphasis supplied); see also In the Interest ofj. D., 280 Ga. App. 861, 865 (1) (c), (d) (635 SE2d 226) (2006) (holding that evidence of continued deprivation “does not automatically support” a finding that the continued deprivation is likely to cause the child serious harm; “instead, there must be evidence in the record that goes beyond showing simply an inability to parent one’s children”); In the Interest of A. T., 271 Ga. App. at 473 (same); In the Interest ofj. T. W., 270 Ga. App. at 36 (2) (d) (same); In the Interest of J. H., 258 Ga. App. at 216 (same); In the Interest ofB. F., 257 Ga. App. at 79 (physical precedent only) (same); In the Interest ofB. F, 253 Ga. App. at 891 (same); In the Interest of J. M., 251 Ga. App. at 383 (4) (same); In the Interest ofD. F, 251 Ga. App. at 862 (same); In the Interest ofK. J., 226 Ga. App. at 308 (2) (b) (same); In the Interest of C. T, 185 Ga. App. at 563 (same).

        Blackburn, 249 Ga. at 694 (2) (citation and punctuation omitted).

        Id. (citation and punctuation omitted).

        See, e.g., In the Interest ofR. J., 308 Ga. App. 702 (708 SE2d 626) (2011); In the Interest ofD. B., 306 Ga. App. 129, 139 (2) (701 SE2d 588) (2010); In the Interest of A. R., 302 Ga. App. 702, 711 (1) (d) (691 SE2d 402) (2010).

        See, e.g., In the Interest of K. J., 226 Ga. App. at 307 (2) (b).

         In the Interest of A. B., 263 Ga. App. 697, 701 (2) (589 SE2d 264) (2003).

        See, e.g., In the Interest of J. S. B., 277 Ga. App. at 663 (2) (d) (reversing termination order because there was “insufficient evidence to support the juvenile court’s conclusion that continued deprivation is likely to cause serious harm to the children[,]” and in so holding, noting that “[u]nlike other cases where we have found evidence of such harm, here no expert witness . . . testified that. .. impermanency or instability were causing specific harms to the children!,]” and “the only attempt to show that continued deprivation might possibly cause the children harm came from the vague testimony ... that the mother’s past history of arrests, mental health issues, and inability to maintain employment created an unsafe and unstable environment”); compare In the Interest of A. T, 271 Ga. App. at 473 (giving concrete examples of evidence where the continued deprivation is likely to cause the child serious harm: (1) a caseworker testifying “as to any adverse effect on the children by their remaining in foster care as opposed to their being permanently adopted,” (2) “testimony from an expert witness such as a psychologist that permanency and a stable environment were important to these children ⅛ well-being!,]” (3) “that the failure to terminate the mother’s parental rights would be detrimental to the children (by causing such things as anger problems, school problems, or academic struggles)!,]” (4) “testimony of children as to their anger at being in foster care and as to their need for a permanent home)!,]” or (5) “testimony of witnesses that visits or contact with the parent adversely affected the children” (citations omitted; emphasis supplied)).

       455 U. S. at 753 (II) (emphasis supplied).

        Id. at 753-54 (II).

        Id. at 753 (II) (emphasis supplied).

        Id. at 758-59 (III) (A) (citations and punctuation omitted; emphasis supplied).

       In acknowledging that parents have a fundamental constitutional right to familial relations with their natural-born children, the Supreme Court of the United States has primarily grounded this substantive right in the Due Process Clause of the Fourteenth Amendment. See, e.g., Meyer, 262 U. S. at 399; Stanley, 405 U. S. at 651 (II). Other courts have identified the Ninth Amendment or other provisions of the Fourteenth Amendment as providing independent or arguably more appropriate constitutional bases for this fundamental right. See, e.g., Doe, 327 F3d at 517-18 (B) & n. 22. But regardless of the constitutional mooring for the right to familial relations, there is no doubt that this right was widely recognized and accepted by the men who wrote and ratified our federal Constitution. See id.; 2 St. George Tucker, Blackstone’s Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and the Commonwealth of Virginia 446 (Birch & Small 1803) (“The duty of parents to provide for the maintenance of their children, is a principle of natural law.”); 2 James Kent, Commentaries on American Law 169 (O. Halsted 1827) (noting that “[t]he rights of parents result for their duties [to their children],” and “the law has given them such authority”); John Locke, Second Treatise of Government, Ch. 6, § 71 (Hackett Publishing Co., Inc. 1980, originally published in 1690) (“This shews the reason how it comes to pass, that parents in societies, where they themselves are subjects, retain a power over their children, and have as much right to their subjection, as those who are in the state of nature.”).

        See Santosky, 455 U. S. at 772-73 (I) (Rehnquist, J., dissenting) (“The majority may believe that it is adopting a relatively unobtrusive means of ensuring that termination proceedings provide ‘due process of law[,’ but] . . . [in] holding that due process requires proof by clear and convincing evidence the majority surely cannot mean that any state scheme passes constitutional muster so long as it applies that standard of proof. A state law permitting termination of parental rights upon a showing of neglect by clear and convincing evidence certainly would not be acceptable to the majority if it provided no procedures other than one 30-minute hearing. Similarly, the majority probably would balk at a state scheme that permitted termination of parental rights on a clear and convincing showing merely that such action would be in the best interests of the child.”).

        Id. at 763 (III) (B) (“Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups, such proceedings are often vulnerable to judgments based on cultural or class bias.” (citation omitted)).

        See also Thorne v. Padgett, 259 Ga. 650, 651 (386 SE2d 155) (1989) (emphasizing that parental rights may only be terminated in “compelling circumstances,” and that “even an unwed father who demonstrates a commitment to parenthood by participating in the life of his child ‘acquires substantial protection under the Due Process Clause’ of his parental rights,” in striking down as unconstitutional a statute that failed to “distinguish between those cases where the failure to provide support is wilful, and those cases where the parent wishes to provide care and support for his child, but lacks the financial resources or ability to do so” (emphasis supplied)).

        See Santosky, 455 U. S. at 748 (I) (A).

        In the Interest of A. G., 287 Ga. App. at 735-36 (citation and punctuation omitted; emphasis supplied); see also OCGA § 15-11-94 (b) (4) (A).

        See Santosky, 455 U. S. at 765-66 (III) (B) (noting that “[flor the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo[J” whereas “[f]or the natural parents, . . . the consequence of an erroneous termination is the unnecessary destruction of their natural family”); In the Interest of K. D. E., 288 Ga. App. at 526 (1) (reversing termination order, and in doing so noting that “even if there were sufficient evidence before us to support a finding of continued deprivation, termination of the parental rights of the mother would not be warranted here because there is no evidence in the record that any continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child,” and that while “a caseworker gave general testimony in response to leading questions that the Department was concerned about the detrimental effects of foster care on the child, there was no evidence that [the child] was experiencing difficulties, such as behavioral or social issues, from being in foster care or that he would experience difficulties if a permanent placement was not put into place; and there was no testimony that a continued relationship with his mother would result in any potential or actual harm to the child”); In the Interest ofT. P., 270 Ga. App. 700, 706-07 (4) (608 SE2d 43) (2004) (reversing termination order, notwithstanding finding of continued deprivation, because “there was no testimony from any professional, or from any lay witness, that the child would [likely] suffer [serious] harm from the current situation),]” and specifically “there is no indication that continued exposure to the mother will cause the child harm”); see also In the Interest of J. K., 278 Ga. App. at 572-73 (Ruffin, J., concurring specially) (noting a line of this Court’s jurisprudence holding that a “finding of continuing deprivation is not enough to demonstrate that deprivation is harmful to the child,” and noting that “these cases require affirmative evidence that the child will be seriously harmed by an ongoing parental relationship”).

       While I conclude that the juvenile court erred in terminating the mother’s parental rights, I, nevertheless, do not fault the juvenile court for reaching this conclusion given the current (and virtually incomprehensible) state of this Court’s termination-of-parental-rights jurisprudence. I have nothing but the greatest respect for the tremendous work and efforts our juvenile-court judges put into each and every case.


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A10A1700.
    COBB v. THE STATE.
    (709 SE2d 9)
   Doyle, Judge.

David Aaron Cobb was charged with two counts of aggravated child molestation (Counts 1 and 2) and four counts of child molestation (Counts 3 through 6) against two children. A Hall County jury found Cobb guilty of aggravated child molestation (Count 2) and child molestation (Count 5); he was acquitted of the remaining charges. Cobb appeals following the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred by admitting certain testimony and prohibiting him from cross-examining an expert witness regarding a particular matter. He also alleges that he received ineffective assistance of counsel. We affirm for the reasons that follow.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. 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. The testimony of a single witness is generally sufficient to establish a fact.

So viewed, the evidence shows that Michelle Epps and her three children from a previous marriage — H. L., M. L., and C. L. — lived with Michelle’s husband, Mark Epps, and his three children from a previous marriage — Jo. E., Ja. E., and K. E. Mark’s three children intermittently had court-ordered overnight visits with their mother (Mark’s former wife), Teresa Cobb, and her husband, Appellant Cobb; Michelle’s daughter, C. L., accompanied Mark’s children to the Cobbs’ home on three or four occasions. In February 2007, K. E. told Michelle that Cobb “had raped her.” Michelle and Mark discussed the allegations with K. E., and they recorded the conversation. Michelle contacted the authorities the following day. Shortly thereafter, C. L. told Michelle that “something had happened to her too.” Michelle stopped the conversation and arranged for C. L. to speak with her school counselor.

After the police investigation, including physical examinations and forensic interviews of K. E. and C. L., as well as interviews of some of their siblings, the State indicted Cobb, charging him with aggravated child molestation and two counts of child molestation of C. L. (Counts 1, 3, and 4) and aggravated child molestation and two counts of child molestation of K. E. (Counts 2, 5, and 6). The first trial against Cobb, held in January and February 2009, resulted in a hung jury and mistrial.

The case proceeded to a second trial in March 2009. K. E., who was nine years old at the time of trial, testified that Cobb used to stare at her when she was changing. On one occasion, when the family was staying in a hotel, Cobb got into bed with K. E. and “pulled out his thing and started rubbing it between [her] legs,” and he moved “his wrong spot” “back and forth.” On another occasion, Cobb got into bed with K. E., “took his finger and put it in [her] . . . panties, and he started moving it around.” Another time, while she was sitting on Cobb’s lap, he “put his hand on top of [her] blue jeans, under [her] waist where [her] wrong spot is, the front part, and rubb[ed] it.” On another occasion, Cobb approached K. E., who was reclined on the couch, and “he got under the covers, and he lifted up [her] T-shirt, and he pulled down [her] panties, and he started kissing [her] wrong spot with [his] open mouth.” C. L., who was 11 years old at the time of trial, testified that Cobb would watch her and K. E. change clothes. According to C. L., Cobb touched her “private spot” on more than one occasion, and he “rubbed a little.”

The State also introduced the testimony of several similar transaction witnesses, including K. E.’s brothers, Jo. E. and Ja. E., as well as another child. Jo. E., who was 13 years old at the time of trial, testified that Cobb “pulled his tally-wacky out of his pants,” which “was sticking straight up,” displayed it to Jo. E. and to Ja. E., and asked “who wants to suck it first.” Afterward, Cobb instructed the boys “not to tell.” Jo. E. also testified that on another occasion, he was in bed with Cobb, and “the covers were going up and down,” and Cobb then went into the bathroom and came back out “a second later” with a cup of “white stuff” in it, and told Jo. E. to drink it. Jo. E. complied, and he testified that it was “sticky and sourish.” Ja. E. was 11 years old at the time of trial, and he testified that he saw Cobb get into bed with K. E., “wiggl[e] around,” and “get[ ] closer to her,” while the family was in a hotel. He also testified that Cobb approached him and his brother, Jo. E., pulled out “his private part” in front of them, and “ma[de] it go up and down with his hand.” Both boys testified that Cobb would watch them while they bathed.

The State also presented a third similar transaction witness, C. S., who was ten years old at the time of trial. C. S. testified that she used to visit one of Cobb’s neighbors, and stated that Cobb rubbed her thigh, close to her private area, on more than one occasion. She also recalled one occasion when she sat on Cobb’s lap in the car, and he touched her chest and kissed her neck. Cobb also called C. S. “sweetheart” and “baby doll.”

The State introduced the videotaped forensic interviews of K. E., C. L., and C. S. Additionally, Helen West, a social worker and therapist, who treated K. E. and C. L. regularly for a year and also treated Jo. E. and Ja. E., testified. According to West, both girls experienced “post traumatic stress symptoms, anxiety, depression, fear, difficulty sleeping, and irritability . . . [, and K. E.] has some very attention[-]seeking sexualized behaviors.” Dr. Julie Battle, who was qualified as an expert and conducted the interviews, also testified, as did Chana Skelton, a therapist who interviewed C. L., K. E., Jo. E., and Ja. E., and a police investigator who spoke with the children. Finally, the State introduced the testimony of James Weber, one of Cobb’s friends and former co-workers, who stated that he walked into Cobb’s house without knocking and observed Cobb performing oral sex on K. E. when she was four or five years old.

Cobb testified at trial and introduced multiple witnesses, including his wife, Teresa, his sister, and an expert witness. At the conclusion of the trial, the jury found Cobb guilty of aggravated child molestation (Count 2) and child molestation (Count 5) on K. E., and acquitted him of the remaining charges. The trial court sentenced him to serve 30 years on Count 2 and 20 years on Count 5, to be served consecutively; Cobb was sentenced as a recidivist and is therefore not eligible for parole. The trial court denied Cobb’s subsequent motion for new trial, and this appeal followed.

1. Cobb challenges the sufficiency of the evidence. This enumeration is without merit.

The testimony of K. E., standing alone, was sufficient to support the verdict. “Moreover, to the extent that there were inconsistencies or conflicts in the evidence, a jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” Viewed in support of the verdict, we conclude that the evidence was sufficient for the jury to find Cobb guilty beyond a reasonable doubt.

2. Cobb argues that the trial court erred by allowing the State’s expert, Dr. Battle, to testify that she did not believe that Michelle or Mark coached K. E. during the tape-recorded conversation with the child in which she relayed her allegations against Cobb.

Cobb did not object to the introduction of the testimony at trial, and as a result, he has waived this argument. Notwithstanding his waiver, however, this enumeration is without merit. As we have recently held, “[testimony by a witness that he did not see any evidence that the child victim had been coached did not constitute bolstering of the child’s credibility and did not impermissibly address the ultimate issue.”

3. Cobb enumerates as error the trial court’s refusal to allow him to cross-examine the State’s expert, Dr. Battle, “regarding children’s suggestibility to other children.” We find no basis for reversal.

During the trial, outside the presence of the jury, Cobb’s trial counsel proffered cross-examination testimony of Dr. Battle that Michelle left her ex-husband and father of her children because there were allegations made by C. L.’s older sisters that their father had sexually molested them. According to Dr. Battle, C. L. was one year old at the time, and “[t]here was no reason to believe” that C. L. was molested by her father at that time. Trial counsel also elicited testimony from Dr. Battle that it was possible that her older sisters discussed the abuse by their father in C. L.’s presence and that such conversation could have had an impact on C. L.’s future statements. When the State examined her during the proffer, Dr. Battle stated that she used the information about C. L.’s sisters’ molestation allegations solely to help her evaluate C. L.’s credibility, and she found C. L. to be credible. Cobb’s counsel then asked Dr. Battle, “Is it not true, Doctor, that children are impressionable and are more prone to suggestibility when speaking with other children?” At that point, the trial court ruled that it would not permit counsel to cross-examine Dr. Battle in the jury’s presence regarding the testimony submitted during the proffer, relying on House v. State.

In House, the defendant challenged the trial court’s refusal to allow defense counsel to cross-examine the victim’s older brother about alleged sexual abuse he suffered by his father, who was not the defendant, but was also the victim’s father. The alleged molestation by the father occurred six years before the defendant’s trial, when the victim was one year old. The defendant argued at trial that such evidence was relevant to demonstrate that the victim may have had the opportunity to learn about sexual abuse by witnessing her brother’s sexual abuse. We affirmed the trial court, holding:

The cases cited by the defendant in support of his attempt to bring in evidence of past sexual abuse of the victim’s brother by someone other than the defendant were cases in which defense counsel was allowed to introduce evidence of past sexual abuse by third parties of the young victims at issue in those cases. This evidence was utilized to demonstrate that the victims, who might normally be unaware of sexual practices and abuse, may have had the opportunity to learn about sexual abuse from a source other than the defendants, or that the victims may be exhibiting “Child Abuse Accommodation Syndrome,” i.e., behavioral symptoms of abuse that were caused by sexual abuse by a third party. The defendant cites to no cases which support his proposition that he should be allowed to question a child other than the victim about sexual abuse by a non-defendant in order to demonstrate that the victim may have learned about sex by witnessing such abuse. This Court expressly disapproves of such questioning and finds that, under the circumstances of this case, such questioning is violative of the witness’ privacy interests, unduly speculative, and irrelevant to the issue of whether the defendant molested this specific victim. This is particularly true when the molestation of the brother occurred when the victim was only one year old. There is no evidence in the record that the victim was aware of the brother’s past sexual abuse, and it is extremely unlikely that a rational juror would find that the victim may have learned about sex from incidents which occurred when she was a mere infant.

The rationale of the House decision is equally applicable here because Cobb has failed to point to any evidence that C. L. had knowledge of her sisters’ previous abuse allegations, and she was one year old at the time of her sisters’ abuse. Cobb argues that House is distinguishable because it prohibited cross-examination of the brother about prior sexual abuse, whereas here, Cobb sought to cross-examine an expert about the children’s previous abuse. This distinction, however, does not render House inapposite because the rationale is equally applicable to this case.

Cobb’s argument that he was precluded from presenting evidence regarding suggestibility is equally unavailing. There was evidence that the children discussed their abuse by Cobb amongst themselves. And Cobb introduced his own expert, Dr. Nancy Copeland Aldridge, who specifically testified about “impressionability or suggestibility^ which] is that sometimes children begin to own what another child says and says yes, that happened to me too,” and she discussed the applicability of the theory to the children in this case. Cobb repeatedly argued during his closing statement to the jury that C. L., K. E., Jo. E., and Ja. E. all “sat around in a room and volunteered stuff that was happening to them,” and that the children “are all influencing one another,” arguing that “[w]hen children are speaking with other children, they begin to adopt the stories and allegations made by the other child.” Thus, Dr. Battle’s testimony regarding suggestibility would have been merely cumulative of other evidence offered at trial, and its preclusion does not warrant reversal.

4. Cobb also claims that he received ineffective assistance of counsel.

To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong. The trial court’s finding that a defendant was afforded effective assistance of counsel must be upheld on appeal unless clearly erroneous.

(a) Cobb contends that trial counsel was ineffective by failing to adequately prepare his expert, Dr. Aldridge, for the second trial. According to Cobb, Dr. Aldridge’s testimony was “more favorable to the defense” in the first trial, and her testimony in the second trial “more than likely aided the State.” Notwithstanding Cobb’s characterization of the trial testimony, we find this argument unpersuasive. The first trial concluded on February 3, 2009, and the second trial began on March 9, 2009. Cobb has not shown that trial counsel would have had any reason to think that the expert’s testimony would change in the month-long break between trials, nor has he demonstrated that additional preparation between the two trials would have somehow rendered Dr. Aldridge’s testimony more favorable to the defense. Thus, Cobb has failed to establish deficient performance or prejudice.

(b) Cobb maintains that his trial counsel should have impeached his wife, Teresa, with her previous admission in a letter to Cobb that she had encouraged her children to make false accusations against him and that she had a reason to appease the State because she had pending drug charges.

Teresa testified as a witness for the State in the first trial, and she admitted on cross-examination that she wrote a letter to Cobb while he was in jail confessing that “[she was] responsible for making all this up and making it happen.” On re-direct, Teresa testified that she was “high” on methamphetamine when she wrote the letter, that she wrote it because Cobb convinced her that he had not abused the children and made her feel guilty, and she denied that she contrived the allegations or encouraged the children to lie. The State did not call Teresa as a witness during the second trial, and she was instead a witness called by the defense.

At the hearing on the motion for new trial, Cobb’s two trial attorneys testified that they made a strategic decision not to raise the issue of the letter Teresa wrote to Cobb because her explanation for doing so was “very bad for the defense,” explaining that testimony at the first trial “paint[ed] Mr. Cobb in a very negative light, and, in our opinion, garnered a whole lot of sympathy for Ms. Cobb and undercut perhaps the credibility or validity of that letter and just made it a whole can of worms that the second time around we weren’t so comfortable getting into.” Trial counsel’s strategic decision was reasonable, and such “[a] strategic decision is not grounds for finding ineffective assistance.”

Cobb also claims that trial counsel was ineffective for failing to impeach Teresa with her pending claims in drug court to demonstrate a motive to testify in a manner favorable to the State. Cobb elicited testimony from Teresa that she previously struggled with substance addiction; she testified on cross-examination that her addiction lasted almost a decade and that she used “cocaine, crank, meth, acid, alcohol, pills, [and] marijuana.” Teresa also admitted that she intended to divorce Cobb. Given these facts, we conclude that Cobb has failed to prove that he was prejudiced by trial counsel’s failure to impeach his own witness with evidence that she had pending charges in drug court.

(c) Cobb further argues that trial counsel was ineffective by failing to request rebutted time following the State’s closing statement. We disagree.

Although the previous version of OCGA § 17-8-71 allowed a defendant who presented no evidence to open and conclude argument, the amended OCGA § 17-8-71, effective on July 1, 2005, provides that “after the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury.”

Thus, Cobb had no right to make a rebuttal argument. Failure to make a meritless motion does not constitute deficient performance. Furthermore, Cobb has failed to specify what additional arguments trial counsel would have made in rebuttal, and therefore, he has failed to demonstrate prejudice.

(d) Cobb further contends that trial counsel should have objected to the State’s improper argument that he “had a compulsion to molest children, and that when his stepchildren were not available[,] he moved on to the neighborhood children.”

In closing, the prosecutor argued that

[Cobb] loved these children in his own sick, twisted way. He is not violent. He is not torturing them. He does to them what he thinks they want. . . . He is touching them, and he molests them. He does this because it is a compulsion for him. He has acted on it, and he can’t stop. We know he won’t stop because he moves on to [C. L.].

Cobb argues that the State’s comment constituted an impermissible “future dangerousness” argument, relying on Williams v. State.

Cobb is correct that it is highly “improper for a prosecutor to argue during the guilt-innocence phase of a criminal trial that if found not guilty, a defendant poses a threat of future dangerousness.” We conclude that the prosecutor’s comments, however, when read as whole, do not constitute a warning to the jury regarding Cobb’s future actions if he remained free, but instead constitute a comment on the evidence, including Cobb’s molestation of the similar-transaction victim, C. L. Even if the argument did violate the prohibition against future-dangerousness arguments by the State, we conclude that “it is highly unlikely that this single portion of the prosecutor’s closing argument contributed to the guilty verdict,” given the evidence presented, including the testimony of K. E.

(e) Cobb further contends that trial counsel was ineffective by failing to object to the State’s comment during closing argument regarding the experts’ opinion of the children’s credibility. Specifically, Cobb argues that the following portion of the State’s argument was improper:

Prosecutor: When children go through one interview, as the three told you, when they have suspicions, they go to law enforcement after that interview and say, you know, there’s an issue here. Every expert that you heard from said the children did not seem to have been coached and did not seem to be testifying about false —
Defense counsel: Objection, Your Honor.
The Court: Overruled.
Prosecutor: They seemed to have specific, appropriate details and memories. They seemed to be talking about actual memories. Every expert told you that. The experts also told you that they did see sometimes cases where children appeared to be coached. Absolutely that happens. Not in this case. We don’t believe all children. We believe these five children.

Cobb contends that “the experts testified] that they found the children to be credible.” Cobb does not, however, provide a record citation(s) for this contention, and we have not found any such testimony in our review of the record. Given that no expert so testified, we cannot conclude with any certainty that the prosecutor’s comment that, “We don’t believe all children. We believe these children,” necessarily referred to the experts’ beliefs. Instead, the prosecutor was simply arguing that the jury should believe the child witnesses were testifying truthfully.

It is well settled that

[a]s a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence. Accordingly, it is proper for a prosecutor to urge the jury to draw inferences from the evidence regarding the credibility of witnesses.

Under these circumstances, we conclude that Cobb has not demonstrated that trial counsel’s failure to object to the above comment during the prosecutor’s closing argument constitutes deficient performance, nor has he shown that there was a reasonable probability that the outcome of the case would have been different but for the purported deficient performance of trial counsel.

(f) Although not specifically enumerated as error, Cobb states that “the cumulative effect of all of the trial counsel’s errors deprived [him] of a fair trial.”

As discussed above, [Cobb] has failed to substantiate that his trial counsel was deficient in many of the respects alleged and has failed to show prejudice resulting from any of his claims of ineffective assistance. We conclude that, even considered cumulatively, the alleged errors of [Cobb’s] trial counsel did not rise to the level of ineffective assistance of counsel.

Decided March 16, 2011

Reconsideration denied March 31, 2011

Sheueli C. Wang, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       OCGA § 16-6-4 (c).

       OCGA § 16-6-4 (a) (1).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation and footnote omitted.) Shorter v. State, 271 Ga. App. 528, 528-529 (1) (610 SE2d 162) (2005).

       See OCGA § 17-10-7 (a).

       See Fogerty v. State, 304 Ga. App. 546, 547 (1) (696 SE2d 496) (2010).

       (Punctuation omitted.) Woods v. State, 304 Ga. App. 403, 405 (1) (696 SE2d 411) (2010).

       See OCGA § 16-6-4 (a) (1), (c); Woods, 304 Ga. App. at 405 (1).

       We note that Cobb did not include a statement of the method by which his enumerations were preserved for appeal as required by Court of Appeals Rule 25 (a) (1).

       See Mattox v. State, 204 Ga. App. 750, 752 (3) (421 SE2d 97) (1992) (“It is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court.”) (punctuation omitted).

       (Citation and punctuation omitted.) Vaughn v. State, 307 Ga. App. 754, 759 (4) (706 SE2d 137) (2011). See also Towry v. State, 304 Ga. App. 139, 143-144 (2) (a) (695 SE2d 683) (2010).

       236 Ga. App. 405 (512 SE2d 287) (1999).

       See id. at 410 (3).

       (Citations omitted; emphasis in original.) Id. at 410-411 (3).

       We note that Cobb was acquitted of the charges against C. L. Thus, he has arguably failed to demonstrate that he was harmed by the exclusion of Dr. Battle’s testimony regarding the molestation of C. L.’s older sisters by their father.

       Cobb points to the affidavit testimony of an expert that he introduced at his motion for new trial, who stated that “expert testimony on a child s suggestibility to other children is necessary in order to assess the credibility of the child’s accusations of sexual abuse.”

       See Stack-Thorpe v. State, 270 Ga. App. 796, 800 (2) (608 SE2d 289) (2004).

       (Citations and punctuation omitted.) Towry, 304 Ga. App. at 143 (2). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See Adesida v. State, 280 Ga. App. 764, 766-767 (3) (c) (634 SE2d 880) (2006); see also Mallon v. State, 266 Ga. App. 394, 397-398 (3) (597 SE2d 497) (2004).

       (Punctuation omitted.) McMichael v. State, 305 Ga. App. 876, 877 (700 SE2d 879) (2010).

       (Punctuation omitted.) Newman v. State, 286 Ga. App. 353, 356-357 (4) (649 SE2d 349) (2007).

       See Griggs v. State, 303 Ga. App. 442, 446 (4) (a) (693 SE2d 615) (2010).

       See McKenzie v. State, 284 Ga. 342, 347 (4) (b) (667 SE2d 43) (2008) (“because [defendant] provides no basis for concluding that the result of his trial would have been different if he had last closing argument, he has not shown that his trial counsel was ineffective in this regard”).

       261 Ga. App. 511 (583 SE2d 172) (2003).

        Hines v. State, 248 Ga. App. 752, 756 (3) (548 SE2d 642) (2001).

       Compare Mason v. State, 274 Ga. 79, 79-80 (2), n. 2 (548 SE2d 298) (2001) (trial counsel was deficient for failing to object to the prosecutor’s argument that the defendant “must be stopped. It’s apparent that he’s not going to do it unless you stop him. . . . Stop him before someone else in our community is Mr. Mason’s victim. Please, please stop him.”); Wyatt v. State, 267 Ga. 860, 864-865 (2) (h) (485 SE2d 470) (1997) (prosecutor’s argument that the defendant could “do it again, get his gun back, and ride down on the elevator with the jury as they leave the courthouse” constituted an improper comment on future dangerousness); Williams, 261 Ga. App. at 515-516 (3) (conviction reversed because prosecutor repeatedly suggested to the jury that if the defendant were not convicted, “something bad” like the Columbine tragedy could happen); Nickerson v. State, 248 Ga. App. 829, 831-832 (2) (a) (545 SE2d 587) (2001) (improper for the prosecutor to argue to the jury that the defendant, who was charged with sex crimes, was a “predator,” who previously was on probation for a similar offense and “did it again,” and implored the jury to “bring the predator to an end” and stop “the nightmares”).

        Mikell v. State, 281 Ga. App. 739, 745 (3) (c) (637 SE2d 142) (2006). See also Murray v. State, 297 Ga. App. 571, 573 (1) (677 SE2d 745) (2009).

       (Citations and punctuation omitted.) Brown v. State, 293 Ga. App. 633, 637-638 (1) (d) (ii) (667 SE2d 899) (2008).

       See id.

        Towry, 304 Ga. App. at 148 (2) (h).


author: BARNES, Presiding Judge.

text:
    A10A1746.
    IKOMONI et al. v. EXECUTIVE ASSET MANAGEMENT, LLC et al.
    (709 SE2d 282)
   BARNES, Presiding Judge.

Alexander and Angela Ikomoni brought this action against SunTrust Mortgage, Inc., Executive Asset Management, LLC, and Select Real Estate Holdings, LLC, alleging claims for wrongful eviction, trespass, punitive damages, and attorney fees. The trial court granted summary judgment to the defendants on all of the plaintiffs’ claims, resulting in this appeal. For the reasons set forth below, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

(Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal from a trial court’s grant of summary judgment, we conduct a de novo review of the law and the evidence. Ins. Co. &c. of Pa. v. APAC-Southeast, 297 Ga. App. 553 (677 SE2d 734) (2009). Mindful of these principles, we turn to the record here.

In June 2001, Mr. and Mrs. Ikomoni, the plaintiffs in this action, acquired certain undeveloped real property in Clayton County for building a home. They operated a construction business and used their own funds to start the home, but' later obtained a construction loan on the property from SunTrust Mortgage, Inc. that was memorialized in a promissory note and security deed. The plaintiffs ultimately defaulted on the loan, and SunTrust foreclosed on the property. SunTrust was the highest bidder at the foreclosure sale.

SunTrust hired Executive Asset Management, LLC to develop a strategy and plan for cleaning up and marketing the foreclosed property. Executive then hired Select Real Estate Holdings, LLC to inspect the property, determine whether it was vacant, perform a market analysis, and submit recommendations for cleaning up and selling the foreclosed property. According to Select’s employee who performed the inspection, the home on the property was still under construction, appeared vacant, and had no electricity or running water. Additionally, no certificate of occupancy had ever been obtained for the home. However, the plaintiffs claimed that they operated their construction business out of the home and stayed there overnight several times a week even after the foreclosure.

Following its initial inspection, Select provided an estimate to Executive for cleaning up and securing the property in preparation for sale. Executive forwarded Select’s estimate to SunTrust, which approved it. At that point, Select had the locks on the home re-keyed, placed certain construction materials in the basement of the home, and had trash and other items removed from the property, although the parties dispute what items were removed. In this regard, the plaintiffs claim that Select removed their personal items and business supplies stored on the property, while Select and the other defendants claim that none of these items and supplies were on the property at the time it was inspected, secured, or cleaned up.

The plaintiffs filed a lawsuit against SunTrust, Executive, and Select for wrongful eviction and trespass and sought compensatory and punitive damages as well as attorney fees. According to the plaintiffs, they were in possession of the property as tenants at sufferance after the foreclosure, and the defendants should have obtained a writ of possession and followed the dispossessory procedures in entering the foreclosed property and removing their personal items that were stored there. The plaintiffs subsequently dismissed their first lawsuit and re-filed the current case in which they alleged the same claims against the defendants. The defendants moved for summary judgment on all of the plaintiffs’ claims, the trial court granted their respective motions, and this appeal followed.

1. The plaintiffs contend that the trial court erred in granting summary judgment to SunTrust on their claims for wrongful eviction and trespass. We disagree. SunTrust was entitled to summary judgment based upon the plaintiffs’ failure to answer its requests for admission.

In the first lawsuit, SunTrust served upon the plaintiffs its requests for admission of facts, but the plaintiffs never responded to the requests. Then, after the plaintiffs dismissed their first lawsuit and filed the current action, the parties stipulated, with the trial court’s approval, that “all discovery (inclusive of discovery responses, or lack thereof, and deposition testimony) from the Prior Lawsuit [would be] applicable in the case at bar.” At no point after the parties’ stipulation did the plaintiffs answer SunTrust’s requests for admission or move to have their admissions withdrawn.

OCGA § 9-11-36 (a) (2) states:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney[.]

(Emphasis supplied.) In light of this plain statutory language, Georgia courts have held that “[u]nquestionably, the penalty for failing to answer or object to a request for admissions is admission of the subject matter of the request.” (Citations and punctuation omitted.) Ledford v. Darter, 260 Ga. App. 585, 587 (1) (580 SE2d 317) (2003). Since the plaintiffs never answered or objected to SunTrust’s requests for admission within the statutory time period, they clearly failed to adhere to OCGA § 9-11-36 (a) (2). Thus, the requests were deemed admitted by the plaintiffs.

The plaintiffs do not contest that they entered into a stipulation with the defendants regarding discovery from the prior lawsuit or that the requests for admission, if deemed admitted in the present action, would result in the grant of summary judgment to SunTrust. Rather, the plaintiffs simply quote from OCGA § 9-11-36 (b), which provides in relevant part: “Any admission made by a party under this Code section is for the purpose of the pending action only and is not an admission by him for any other purpose, nor may it be used against him in any other proceeding.” But it is clear that statutory discovery procedures can be modified by stipulation of the parties, as was undisputably done in this case. See OCGA § 9-11-29 (2); Moore v. Harris, 201 Ga. App. 248, 250 (2) (410 SE2d 804) (1991). See also 3 Ga. Procedure: Discovery § 5:15. Accordingly, the plaintiffs reliance upon OCGA § 9-11-36 (b) is misplaced under the circumstances. Compare Mumford v. Davis, 206 Ga. App. 148 (424 SE2d 306) (1992).

It follows that the trial court did not err in granting summary judgment to SunTrust on the plaintiffs’' claims for wrongful eviction and trespass. “Where a party failed to answer a request for admissions within the requisite time and the admissions removed [from the jury at least one essential element of the party’s claims], the other party [is] entitled to a grant of its motion for summary judgment.” (Citation and punctuation omitted.) Atlanta Cas. Co. v. Goodwin, 205 Ga. App. 421, 422 (422 SE2d 76) (1992).

2. The plaintiffs further contend that the trial court erred in granting summary judgment to Executive and Select on the claims for wrongful eviction and trespass. According to the plaintiffs, a jury could find Executive and Select liable for wrongful eviction and trespass because they failed to comply with the statutory disposses-sory procedures in entering the property and allegedly removing the plaintiffs’ personal items. Here, there is no evidence that SunTrust chose to file, or contracted with another company to file on its behalf, a statutory dispossessory action against the plaintiffs and obtain a writ of possession. Therefore, the determinative legal question is whether Executive and Select had an independent legal duty to file, sua sponte, a dispossessory action and then comply with the procedures applicable in such an action. We conclude that they did not.

“The exclusive method whereby a landlord may evict a tenant is through a properly instituted dispossessory action filed pursuant to OCGA § 44-7-50 et seq.” Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 805 (1) (a) (689 SE2d 843) (2009). After instituting a disposses-sory action and obtaining a writ of possession, the landlord is authorized to evict the tenant, but the landlord must “plac[e] the tenant’s property on some portion of the landlord’s property or on other specific property designated by the landlord and approved by the executing officer.” Washington v. Harrison, 299 Ga. App. 335, 339 (1) (682 SE2d 679) (2009). See OCGA § 44-7-55 (c). If the landlord evicts a tenant without filing a dispossessory action and obtaining a writ of possession, or without following the dispossessory procedures for handling the tenant’s personal property, the landlord can be held liable for wrongful eviction and trespass. See Steed, 301 Ga. App. at 805 (1) (a); Swift Loan &c. Co. v. Duncan, 195 Ga. App. 556, 557 (1) (394 SE2d 356) (1990).

It is true that “[a] landlord-tenant relationship exists between a legal title holder and a tenant at sufferance such that the disposses-sory procedures set forth in OCGA § 44-7-50 et seq. are applicable.” Steed, 301 Ga. App. at 805 (1) (a). But while a landlord may accomplish his statutory duties through his attorney or agent, see OCGA § 44-7-50 (a), a landlord cannot absolve himself from liability by delegating those duties to an independent contractor. See OCGA § 51-2-5 (4); Owens v. BarclaysAmerican/Mtg. Corp., 218 Ga. App. 160, 162 (2) (460 SE2d 835) (1995). And we have held that where a party has a nondelegable duty imposed by statute, an independent contractor cannot be held liable for failing to carry out that statutory duty on its own. See, e.g., Taylor v. AmericasMart Real Estate, 287 Ga. App. 555, 557 (1) (a) (651 SE2d 754) (2007); Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744-745 (2) (470 SE2d 270) (1996).

SunTrust was the legal title holder of the foreclosed property, and thus the duty to comply with the statutory dispossessory procedures (to the extent that it arose under the facts of this case) was imposed upon SunTrust and could not be delegated to a third party. Furthermore, there is no evidence that SunTrust ever sought to accomplish its statutory duties through an agent by contracting with either Executive or Select to file a dispossessory action against the plaintiffs on its behalf. It follows that Executive and Select, as undisputed independent contractors, had no separate legal duty to file a dispossessory action and then comply with the statutory procedures applicable in such an action. Cf. Taylor, 287 Ga. App. at 557 (1) (a); Greene, 220 Ga. App. at 744-745 (2). Given the absence of an independent legal duty imposed upon Executive and Select, the trial court correctly granted summary judgment to them on the plaintiffs’ wrongful eviction and trespass claims.

3. Because the plaintiffs cannot succeed on their underlying tort claims for wrongful eviction and trespass, they likewise cannot prevail on their claims for punitive damages and attorney fees against the defendants. Walker County v. Tri-State Crematory, 284 Ga. App. 34, 40 (1) (643 SE2d 324) (2007). Consequently, the trial court did not err in granting summary judgment to the defendants on the plaintiffs’ claims for punitive damages and attorney fees.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Decided March 16, 2011

Reconsideration denied March 31, 2011.

Mack & Harris, Robert L. Mack, Jr., for appellants.

Dickenson Gilroy, Monica K. Gilroy, Weissman, Nowack, Curry & Wilco, Ned Blumenthal, Seth M. Friedman, Coleman & Talley, Edward F. Preston, for appellees.

       “Where former owners of real property remain in possession after a foreclosure sale, they become tenants at sufferance.” (Citation, punctuation and emphasis omitted.) Steed, 301 Ga. App. at 805 (1) (a). The parties dispute whether the plaintiffs remained in possession of the property after the foreclosure sale and thus whether they were tenants at sufferance.

       The plaintiffs have not asserted separate common law claims for negligence or conversion, and so we need not resolve whether Executive and Select could be held hable under those tort theories for their alleged handling of the plaintiffs’ personal property, distinct and apart from their compliance or noncompliance with statutory dispossessory procedures. Cf. J. M. S. Bldg. Maintenance v. Adcox, 301 Ga. App. 798, 799-800 (1) (689 SE2d 841) (2009) (holding that although property owners have a nondelegable duty to inspect their premises to keep them safe for invitees, an independent contractor hired by the owner could be held liable for plaintiff s slip and fall accident, if the contractor was negligent in performing its separate common law duty not to injure another person or his property).