text:
    A15A1376.
    HAWKINS et al. v. BLAIR et al.
    (780 SE2d 515)
   Branch, Judge.

Charles Jordan Hawkins and Jacob Nathaniel Hawkins, residents of South Carolina, filed suit in Fulton County against James A. Blair III, a resident of South Carolina and an attorney with Nexsen Pruet, LLC, which is located in South Carolina, alleging that Blair illegally transferred money from their personal bank accounts at Morgan Stanley in Atlanta to Nexsen Pruet’s bank accounts in Greenville, South Carolina, allegedly for legal fees arising out of a previous action. Jordan and Jacob appeal the trial court’s dismissal of their complaint on the ground of forum non conveniens. For the reasons shown below, we affirm.

We review the trial court’s decision to grant a motion to dismiss on the basis of forum non conveniens for abuse of discretion. Gowdy v. Schley, 317 Ga. App. 693, 695 (2) (732 SE2d 774) (2012); Collier v. Wehmeier, 313 Ga. App. 421, 422 (721 SE2d 919) (2011).

That said, the discretion of the trial court is not without some limits, and when an appeal properly is taken from the grant or denial of a motion to dismiss under the doctrine of forum non conveniens, the appellant is entitled to meaningful appellate review, even if that review is only for an abuse of discretion.

Wang v. Liu, 292 Ga. 568, 569-570 (1) (740 SE2d 136) (2013) (footnote omitted). Also, “we will affirm the trial court’s findings on disputed factual questions relating to venue if there is any evidence to support them.” Killearn, Inc. v. Southern Structural, 308 Ga. App. 494, 495 (1) (707 SE2d 882) (2011).

The allegations in the complaint and other parts of the record show that in July 2007, Jordan and Jacob’s father, a South Carolina resident, contacted Blair, also a South Carolina resident, to represent his sons in a case alleging mismanagement of a trust intended in part to benefit Jordan and Jacob, who were less than 18 years old at the time. The appellants’ father paid Blair $20,000 in legal fees, and in July 2008, Blair, acting pro hac vice, filed suit in Stephens County, Georgia, where the trust had been established and where the trustees lived. (As the trial court noted, Stephens County borders South Carolina.) During the course of the litigation and thereafter, the appellants’ father paid Blair over $39,000 in additional fees and expenses associated with the litigation. The case was tried in September and October 2009, Jordan and Jacob prevailed, and the Stephens County court entered a final judgment awarding them $46,323 in damages and $163,560 in attorney fees and expenses against the defendant trustees. Thereafter, the appellants’ father received an invoice from Blair for $166,865.05.

The complaint further alleges that one year later, on October 8, 2010, the trial court ordered that the custodial accounts from the trust, which were located at Morgan Stanley in Atlanta, be distributed to Jordan and Jacob because they had attained eighteen years of age. The court’s order stated that the custodial accounts should be distributed “pursuant to written instructions of counsel for the [appellants], Nexsen Pruet, LLC.” Beginning on October 19, 2010, and continuing for eight months, Blair, without notifying his clients or receiving their authorization, directed Morgan Stanley to make six wire transfers totaling between $117,000 and $120,000 from the custodial accounts to a Nexsen Pruet account in Greenville, South Carolina. In September 2012, Jordan and Jacob requested that Blair provide “a simple accounting of exactly when their money was removed from Morgan Stanley and how much was moved.” According to the appellants, Blair has not responded satisfactorily.

Accordingly, in September 2013, Jordan and Jacob filed suit in Fulton County against Blair and Nexsen Pruet for professional malpractice, conversion, and larceny by a fiduciary, and they demanded punitive damages. They averred that venue was proper in Fulton County because the conduct giving rise to their claims — the wire transfers — occurred at Morgan Stanley in Atlanta. On November 26, 2013, Blair and Nexsen Pruet answered and moved to dismiss based on lack of personal jurisdiction and forum non conveniens. The motion triggered an automatic stay of discovery through February 24, 2014. Nevertheless, Jordan and Jacob served discovery on Blair and Nexsen Pruet in December 2013 and January 2014, prompting the defendants to move for a protective order. In February 2014, Jordan and Jacob filed a motion to allow jurisdictional discovery pursuant to OCGA § 9-11-12 (j) (4) and, later, a motion to compel answers to the earlier discovery requests. The defendants then renewed their motion to stay discovery while the motion to dismiss was pending. In August 2014, the trial court entered a final order upholding personal jurisdiction over the defendants but granting the defendants’ motion to dismiss on the basis of forum non conveniens. The present appeal ensued.

Jordan and Jacob contend that the trial court erred by failing to timely rule on the motion to dismiss; by failing to address their discovery requests prior to ruling on the motion to dismiss; and by granting the motion to dismiss.

1. Because the defendants filed a motion to dismiss with their answer, discovery was stayed for 90 days under OCGA § 9-11-12 (j) (1). That Code section further provides that under those circumstances, “[t]he court shall decide the motion to dismiss within the 90 days provided in this paragraph.” Id. Jordan and Jacob appear to contend that the trial court was not authorized to grant the motion to dismiss after that time. We disagree and find no error. See Charles H. Wesley Ed. Foundation v. State Election Bd., 282 Ga. 707, 709 (2) (654 SE2d 127) (2007) (“[L]anguage contained in a statute which, given its ordinary meaning, commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act.”) (citations and punctuation omitted). Here, OCGA § 9-11-12 (j) does not provide a remedy or penalty for a trial court’s failure to decide such a motion within the stated time, and although Jordan and Jacob claim delay as a harm, they have not shown any specific harm that resulted from the trial court dismissing the action at a later point in time.

2. Jordan and Jacob contend the trial court erred by ruling on the motion to dismiss without allowing them to obtain discovery related to the issue of forum non conveniens. But Jordan and Jacob have not articulated any evidence which they hope such discovery would uncover that would be relevant to that issue. We therefore find no abuse of discretion by the trial court by failing to rule on the appellants’ discovery motion. See Settles Bridge Farm v. Masino, 318 Ga. App. 576, 581 (4) (734 SE2d 456) (2012) (trial court did not abuse discretion in refusing to lift stay and extend discovery where plaintiff did not make “a good cause showing that there was other evidence necessary for resolution of the motion to dismiss”).

3. Jordan and Jacob contend the trial court erred by dismissing their complaint under the doctrine of forum non conveniens. We disagree.

A Georgia court will dismiss an action if “in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state.” OCGA § 9-10-31.1 (a). When addressing a motion to dismiss on this ground, a trial court must consider seven factors:

(1) Relative ease of access to sources of proof; (2) Availability and cost of compulsory process for attendance of unwilling witnesses; (3) Possibility of viewing of the premises, if viewing would be appropriate to the action; (4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy; (5) Administrative difficulties for the forum courts; (6) Existence of local interests in deciding the case locally; and (7) The traditional deference given to a plaintiff’s choice of forum.

Id. The defendants bore the burden of showing that the factors support dismissal. Collier, 313 Ga. App. at 422. Although the statute does not require it, the “better practice” is for the trial court to make “specific findings on each of the enumerated statutory factors.” Wang, 292 Ga. at 570 (1).

In this case, the trial court made findings on each of the seven factors. The trial court found that the first, fourth, fifth and sixth factors weighed in favor of dismissal, with the fifth being the most persuasive, and that only the seventh factor weighed in favor of Jordan and Jacob. The second and third factors did not favor either party. As shown below, there was some support for each of the trial court’s findings, and we therefore find no abuse of discretion.

(a) The trial court found that the first factor — relative ease of access to sources of proof — favored dismissal, because every party to the suit was a resident of South Carolina and the Nexsen Pruet law offices were located in South Carolina. The court noted that “aside from the bank and its employees in Atlanta, no other proof would need to be accessed in Fulton County.” On appeal, Jordan and Jacob contend this conclusion is factually erroneous because, they argue, the bank and its employees are the most critical nonparty witnesses in the action in that they have knowledge of what Blair told them to gain access to the appellants’ money.

But the appellants’ case turns more on whether Blair was authorized to obtain the money than on how he did so, and most of those facts turn on the professional relationship between Blair and the Hawkins family; on the financial details of the father’s payments to Blair; and on a reckoning of attorney fees incurred and received in connection with the Stephens County lawsuit. All of these facts are located in South Carolina. Jordan and Jacob also contend the trial court overlooked the fact that several witnesses connected with the Stephens County action live in Georgia. But the appellants did not bring any of these potential witnesses to the attention of the trial court before the trial court’s decision, nor did it explain what evidence these witnesses possessed. “An argument not raised in the trial court is waived and cannot be raised for the first time on appeal.” Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 828 (2) (a) (648 SE2d 156) (2007) (footnote omitted). Accordingly, the trial court’s finding on the first factor is supported by the information available to the trial court at the time of its decision.

(b) Jordan and Jacob contend the trial court failed to properly consider the second factor — the availability and cost of compulsory process for attendance of unwilling witnesses. They argue that “there is no reason to believe that any Morgan Stanley witness would have any interest in voluntarily traveling to South Carolina to testify,” and that they will be unable to obtain documents from the Atlanta bank. But, as the trial court held, the appellants have not shown that there are any unwilling witnesses. Moreover, both South Carolina and Georgia have enacted a version of the Uniform Interstate Depositions and Discovery Act. See OCGA § 24-13-110 et seq. and S. C. Code Ann. § 15-47-100 et seq., which allows discovery as indicated in the title of the Act.

(c) As the trial court held, the third factor is not relevant to this case because it is not necessary to view any premises.

(d) With regard to the fourth factor — unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy — the trial court stated that the “Plaintiffs’ right to pursue their remedy [would] not be adversely affected if the case is dismissed from Fulton County.” The court again noted that both parties were South Carolina residents and that the alleged injury occurred in South Carolina where the money taken from the accounts was received by Blair’s firm. The court also pointed out that Stephens County, Georgia — where the previous litigation took place — borders South Carolina. The court concluded that hearing the case in Fulton County, Georgia, was not necessary to the appellants’ rights to pursue their remedy, and that the expenses and trouble that the defendants might incur in coming to Fulton County favored dismissal. We also note, as stated above, that the appellants’ case turns more on whether Blair was authorized to take the money than on how he convinced an Atlanta bank to send him the appellants’ money. Thus the trial court’s conclusion that a South Carolina forum would be less expensive and troublesome and not adverse to the plaintiff’s remedy is supported by the record.

(e) The trial court held that the fifth factor — administrative difficulties of the forum court — i.e., the Fulton County court, weighed most heavily in favor of dismissal. The trial court explained that a tort action is governed by the substantive law of the state where the tort was committed, i.e., where the injury occurred or where the last event making the tortfeasor liable occurred. The court concluded that the alleged injury would have been suffered in South Carolina, and that the appellees’ “last acts” to make them liable also would have occurred in South Carolina. Thus, the court concluded that it would need to apply South Carolina tort law, which would be an administrative difficulty for a Georgia court.

We find no error with this analysis. In Georgia, “a tort action is governed by the substantive law of the state where the tort was committed.” Dowis v. Mud Slingers, Inc., 279 Ga. 808, 809 (621 SE2d 413) (2005) (citation omitted).

The place where the tort was committed, or, the locus delicti, is the place where the injury sustained was suffered rather than the place where the act was committed, or, as it is sometimes more generally put, it is the place where the last event necessary to make an actor liable for an alleged tort takes place.

Bullard v. MRA Holding, 292 Ga. 748, 750-751 (1) (740 SE2d 622) (2013) (citation and punctuation omitted.) Here, the last event that led to the alleged tort occurred when Blair allegedly caused the appellants’ money to be deposited into Nexsen Pruet’s South Carolina account with no intent to account for the money properly in accordance with the attorney-client relationship established between South Carolina residents and a South Carolina attorney.

(f) With regard to the sixth factor — whether there are local interests in deciding the case locally — the court found no local interests favoring venue in Fulton County. The court noted that the previous litigation took place in Stephens County, Georgia, that both parties are residents of South Carolina, and that “[a] South Carolina forum, where all parties reside and where the alleged injuries would have been suffered, would have a stronger interest in deciding this case.”

The appellants argue that the fact that Blair appeared pro hac vice in the Stephens County action is a local factor “of utmost concern” in that he submitted himself to the authority of the State Bar of Georgia. But the appellants did not file this suit in Stephens County, which may have had more interest in this action than Fulton County, given that the trust lawsuit was filed there. And we are not persuaded that Blair’s pro hac vice status and the related obligations imposed on him override the factors relied on by the trial court. The appellants also argue that Fulton County has an interest in addressing potential criminal conduct carried out in Fulton County. But the present matter is civil, and we have no evidence that any such criminal action has been filed.

(g) The trial court found that only the seventh factor weighed against dismissal. The trial court acknowledged the “importance of deference given to an appellant’s choice of forum” but held that in light of the totality of the circumstances, that factor was not enough to warrant venue in Fulton County, Georgia. We agree.

In short, the record shows that “the court specifically addressed and balanced the factors that are part of the forum non conveniens analysis,” Hewett v. Raytheon Aircraft Co., 273 Ga. App. 242, 248 (2) (614 SE2d 875) (2005) (citations omitted), overruled on other grounds by Wang, 292 Ga. at 570 (1), and the record supports the trial court’s factual findings. We therefore find no abuse of discretion by the trial court in dismissing this action for forum non conveniens. See Gowdy, 317 Ga. App. at 695-696 (2) (no abuse of discretion where trial court evaluated non conveniens factors and issued a written order denying motion based on those factors).

Decided November 20, 2015.

James L. Ford, Sr.; Cathey & Strain, Dennis T. Cathey, Matthew A. Cathey, for appellants.

Carlock, Copeland & Stair, Kent T. Stair, William P. Jones, for appellees.

Judgment affirmed.

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

       The appellants apparently have refiled their case in Charleston County, South Carolina.

       In a supplemental brief, the appellants argue that they might be able to obtain punitive damages in a Georgia court but that certain case law in South Carolina suggests that such damages may not be available in a South Carolina court. This argument was not raised in the trial court and is therefore waived. See Locke’s Graphic, 285 Ga. App. at 828 (2) (a).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A15A1427.
    In the Interest of S. B. et al., children.
    (780 SE2d 520)
   Boggs, Judge.

The parents of five-year-old S. B. and six-year-old D. B. appeal from juvenile court orders terminating their parental rights and subsequent orders denying their motions for new trial. Specifically, the parents contend that the court lacked clear and convincing evidence to support its findings that deprivation was likely to continue and that continued deprivation would cause serious physical, mental or emotional harm to the children. The parents further assert that termination of their parental rights was not in the children’s best interest and that they received ineffective assistance of counsel. We granted the parents’ application for discretionary review, and, for the reasons explained below, we reverse.

The record shows that the mother and father have two children together out of wedlock, a daughter born in 2010 and a son born in 2009. The father was married to another, but he noted that he had been separated from his wife for 15 years and did not know her whereabouts so he could not divorce her. Although he never legitimated the children, he resided with the mother and children except when working in North Carolina to support them. DFACS became involved with the family in March 2011, when the Department substantiated allegations that the children had been neglected and were receiving inadequate food, clothing, shelter, and medical attention. The parents consented to court orders, entered on June 11,2012, finding the children deprived but allowing them to remain in the parents’ custody under a protective order that required the parents, among other things, to maintain sufficient income, provide adequate food, keep housing free of animal urine and feces, make and keep necessary medical and dental appointments, and take parenting skills training. In the orders, the parents stipulated that conditions in the family home were unsanitary and unsafe: old food and dirty dishes were piled in the sink and on the counters, dog feces was located throughout the house, including in the children’s room, cigarette butts and piles of trash were located throughout the house, expired food remained in the refrigerator, and the house lacked electric power. Furthermore, the parents stipulated that they failed on many occasions to take the children to scheduled doctor appointments and that the pediatrician would no longer provide well-baby checks for the children. The court orders were set to expire on November 23, 2012, unless sooner terminated by court order.

On July 25, 2012, the children were removed from their home and placed in foster care based on a new complaint that there was no electric service in the home during the summer heat, that D. B. had received severe sunburns on at least three occasions, and that the parents had failed to comply with the protective order: the parents had unstable housing, their home continued to be unsanitary, and neither parent had a steady income. The children again were found to be deprived after the 72-hour hearing, and on August 15, 2012, the parents stipulated to a deprivation finding based upon medical neglect (three untreated severe sunburns and a lack of up-to-date immunizations), inadequate supervision, inadequate housing, irregular employment, and general noncompliance with the protective order directives. The court orders were set to expire on July 25, 2013, unless sooner terminated by court order.

At a January 2013 judicial review, the court found that the parents had maintained a bond with the children by attending weekly visits, but that they needed to obtain and maintain employment and stable, clean housing. The children remained in foster care, and the court revised the permanency order to a concurrent plan of reunification or adoption. On July 15, 2013, this plan was extended through July 25, 2014, unless sooner terminated by court order. In that consent order, the court noted that both parents had completed their parenting training, made virtually all scheduled visits with the children (even though they had to walk five miles to the visitation because they could not get a ride from family or friends), and maintained a bond with the children, but they still failed to maintain stable employment or housing.

On October 1, 2013, DFACS filed petitions to terminate the parents’ parental rights. Since the father had not legitimated either child, he was informed that he would lose all rights to the children and would not be entitled to object to the termination of his rights if he did not file a petition to legitimate within 30 days. On the same day, the court appointed public defender Katie Parker as attorney for both the father and the mother.

The one-day termination of parental rights hearing occurred on December 10, 2013. At the outset, DFACS invoked the statutory provision of OCGA § 15-11-96 (i) extinguishing the rights ofputative fathers to object to termination of their parental rights. Parker admitted that she failed to file a petition for legitimation on behalf of the father after being served with the termination of parental rights petition.

Beverly Oxley, a licensed psychologist, testified without objection at the termination hearing as an expert in child psychology. In October 2012, she performed separate two-hour evaluations of then three-year-old D. B. and two-year-old S. B. According to Oxley, both children had severe learning delays in their speech and needed a language-rich or stimulating environment. In addition, both children demonstrated symptoms of reactive attachment disorder, which is a disorder in which children are unable to form healthy attachments and need stability, consistency, and loving caregivers to form healthy attachments. Oxley opined that moving the children from foster home to foster home would put them at risk for developing reactive attachment disorder. However, she noted that the children’s symptoms did not warrant therapy, though she did recommend speech therapy for the children.

Kim Ball, a social services case manager for DFACS, conducted parenting classes for the parents in conjunction with their weekly visits from October 2012 through March 2013. Ball testified that the parents were extremely cooperative and very interested in the training. In fact, they rarely missed their visits and often walked five miles from their home to the visits. The father often got down on the floor with the children to play and had a lot of positive interaction. The mother, who claimed back problems prohibited her from playing on the floor, read to the children or played video games with them. According to Ball, the children were well-behaved during the visits, but she wished the mother were more engaged.

Paulette Turner, a DFACS parent aide, provided parenting education and observed visits from July 2013 through November 2013. She testified that the parents and the children were always happy to see each other, on visit days the children would “always” ask, “Are we going to see Mama and Daddy?” and at the visit’s end “everybody just hugs and kisses and says, ‘Bye, see you next week.’ ” Turner testified, however, that the children appeared to be happy to return to their foster home after visits. According to Turner, both parents were engaged in the visits, brought a bag with clean diapers and snacks to each visit, and occasionally brought the children crayons, colored pencils, or toys. The father had to stop visiting after he left to resume his old job in North Carolina.

Case manager Ashley Buchanan also noted the parents’ remarkable visitation record, and she testified that the parents cooperated with home visits, phone calls, and mail. Regarding the mother, Buchanan testified that she regularly attended mental health care counseling, cooperated with DFACS in home visits and phone calls, participated in parenting classes, and had no further medical issues with the children. The mother walked to various businesses seeking jobs, but had minimal success finding employment. And, although the house was cleaner than ever, there was still a bug problem, and the housing situation remained unstable pending a move to Charlotte, where her husband had been rehired at the company where he worked for 23 years before being laid off in 2013. Buchanan also observed some visits with the children and agreed that the father demonstrated more parenting skills and nurturing behaviors than the mother, but acknowledged that the mother’s passive parenting is more a difference in style than bad parenting. The parents had not paid any child support while the children were in DFACS custody.

The father testified that he had worked for 23 years as a tile and stone mason with the same company in North Carolina until the recession resulted in his layoff. He had recently been rehired and was making $16 per hour working 40 hours a week. According to the father, he could not get off work on Wednesdays to see his children, and he wanted to transition them to Charlotte. Until then, the children and the mother could stay in the home he was renting through the money he was sending her.

The mother testified that in North Carolina the children were involved in a program called Babies Can’t Wait. She contacted the program here in Georgia when they moved, and D. B. was started on speech therapy; S. B. did not need services at the time of the assessment. The mother noted that she had put out roach traps to eliminate the last of the bugs, had bagged old clothing, and had begun taking the dog outside so dog feces was no longer an issue in the house. She admitted that she previously was unaware of the dangers associated with dog feces, and she has scrubbed the floors and rugs in the house to get rid of the feces and odor. The mother admitted on two occasions to leaving the dog in the home with food and water without letting it out to relieve itself, but explained that on those occasions she had forgotten to give her brother a key to let the dog out. The mother described her parenting style as more watching and talking than doing, like her mother. She also acknowledged that she was in counseling, but had not been prescribed any medications. And she testified that when the family relocated to Charlotte she expected to find work because there was more work there and the bus ride only cost $2.

At the time of the hearing, the foster parents had four biological children living in their house, aged eight to nineteen, and the mother of the foster mother. According to the foster mother, S. B. andD. B. are very affectionate, have improved a lot while under their care, and the foster parents are willing to provide a “forever home” to the children.

The guardian ad litem testified that the parents “have demon.strated . . . their commitment, their love for their children through their visitations that took some strenuous efforts on their part.” However, he still recommended termination based on the parents’ inability to provide safe, stable housing and to demonstrate learned parenting skills.

Following the hearing, the juvenile court noted that the parents have worked “really hard,” and he has never had anybody come to court and say they’ve walked five miles for a visit. However, the court found “a general inability” on the part of the parents that will emotionally harm the children, and, therefore, the court found the children deprived. The court cited the foster parents’ care, adequate transportation and finances, and “importantly” the fact that the foster parents were willing to adopt the children as support for its finding that termination of parental rights was in the children’s best interests. In its written orders, prepared by DFACS, the juvenile court found that DFACS had met the requirements for terminating the parents’ rights and that termination of the parents’ rights was in the children’s best interests. The orders stated that although the father had secured employment in North Carolina, he had not maintained the employment for a sufficient length of time to ensure that he could provide financially for the children. The orders further noted that the father’s failure to legitimate the children within 30 days from the notice provided for in OCGA § 15-11-96 required termination of his parental rights. See In the Interest of T. B. R., 304 Ga. App. 773, 786 (4) (697 SE2d 878) (2010) (father who fails to legitimate lacks standing to challenge termination).

The parents filed motions for new trial. On July 12, 2014, prior to a hearing on the motions for new trial, the foster father died suddenly. The parents then filed amended motions for new trial and motions to set aside the judgment based on this changed circumstance and their assertion that their attorney had rendered ineffective assistance by failing to file a legitimation petition for the father.

At the August 5, 2014 motions hearing, the caseworker testified that the children spent six days in another home following the foster father’s death, and the foster mother was trying to determine if she could still adopt them as a single mother of four children, but had not made a final decision. In addition, the parents’ attorney testified that she knew the parents were not married and realized a few days before trial that she should have filed a petition to legitimate, but failed to do so. She bore sole responsibility for failing to file the petition, noting there was nothing strategic in not filing and no benefit to the father in not legitimating. The juvenile court nonetheless denied the motions for new trial or to set aside.

1. The parents assert that the trial court erred in terminating their parental rights because there was no clear and convincing evidence that deprivation was likely to continue or to cause serious harm to the children, and the evidence failed to show that termination was in the children’s best interests.

On appeal from a juvenile court’s decision to terminate parental rights, we review the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parental rights should be terminated.

(Citation and punctuation omitted.) In the Interest of C. S., 319 Ga. App. 138, 139 (735 SE2d 140) (2012). “We do not weigh the evidence or resolve credibility issues, but merely determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated.” (Citation and footnote omitted.) In the Interest of K. A. B., 285 Ga. App. 537, 537 (646 SE2d 736) (2007). However,

[w]e proceed in a termination case with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.

(Citations and punctuation omitted.) In the Interest of C. A., 316 Ga. App. 185, 189 (728 SE2d 816) (2012); see also In the Interest of C. S., supra, 319 Ga. App. at 144-145 (1).

As a threshold matter, we must determine whether to apply the new or old Juvenile Code. The new Juvenile Code, which became effective on January 1, 2014, applies to those juvenile proceedings commenced on or after that date. See Ga. L. 2013, p. 294, § 5-1. Thus, although the termination order in this case was entered in March 2014, the old Code applies because the deprivation petition was filed in October 2013. See In the Interest of F. A. G. R., 328 Ga. App. 88, 89, n. 1 (761 SE2d 512) (2014).

Under the old Code, a termination of parental rights case involves a two-step analysis. First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the children are deprived; (2) the lack of proper parental care or control is the cause of their deprivation; (3) the cause of their deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. See former OCGA § 15-11-94 (b) (4) (A) (i)-(iv). If these four factors are found to exist, then the juvenile court must ascertain whether termination of parental rights is in the best interests of the children, considering their physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. See In the Interest of A. G., 293 Ga. App. 383 (667 SE2d 176) (2008).

Here, there were no allegations of physical abuse, drug use, or criminal conduct. In fact, the juvenile court and DFACS employees all commended the parents on their remarkable visitation record and their cooperation with home visits, phone calls, and parenting classes. The children were excited about visits and well behaved during the visits, and, although the mother did not engage with the children as well as she could have, at least one DFACS employee testified that her actions may have represented a different parenting style rather than bad parenting. Granted, the parents were slovenly and poor, but other than general statements that filth is dangerous, DFACS presented no evidence that the squalid living conditions posed a threat to the children or that the children were unhealthy or sick due to the unsanitary conditions. Furthermore, the evidence showed that the parents’ living conditions were improving. The parents were educated regarding the issues with dog feces and had taken steps to rectify the problem, and the parents were attempting to resolve the roach infestation. The parents’ home may not have been perfect, but it was cleaner than ever, and the father had been rehired by the company for which he had worked for 23 years.

It is well settled that “[a] court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere.” (Citation, punctuation and footnote omitted.) In the Interest of D. L. T. C., 299 Ga. App. 765, 769 (1) (684 SE2d 29) (2009).

This is not a case where the “evidence” consisted of merely “positive promises” from the parent[s] that [they] would change and rectify past failures so as to avoid termination of [their] parental rights, and the juvenile court appears to have prematurely discounted the [parents’] progress toward meeting [their] goals.

In the Interest of C. J. V., 323 Ga. App. 283, 287 (746 SE2d 783) (2013). Given the steps the parents took to maintain contact with their children, their improvement during the time they worked with DFACS, and the father’s recent reemployment with his former long-term employer, the juvenile court likely erred in finding clear and convincing evidence that any deprivation was likely to continue.

Moreover, even if the evidence was sufficient to show that deprivation was likely to continue, we have expressed concern and urged caution, noting that 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: “The [parents’] inability to care for [their] children does not necessarily mean that [their] current relationship with them is detrimental.” In the Interest of D. F., 251 Ga. App. 859, 862 (555 SE2d 225) (2001). Here, the juvenile court found, “The [children] had already suffered harm as a result of the parents’ actions, and the Court can just presume that the child would be subject to a likelihood of further harm by being returned to the custody of the parents.” It does not appear that the court considered maintaining the status quo to provide the parents additional time to show an improvement in their living conditions and ability to parent, even though the father presented evidence that he had been rehired by his former employer and was working full time at twice the minimum wage, which would improve their living conditions.

Furthermore, while there was testimony that the young children had experienced some developmental delays and showed some symptoms of reactive attachment disorder, they were not diagnosed with this disorder and were not receiving any counseling other than speech therapy, which the mother had begun with one of the children before moving to Georgia. Although the parents may have poor parenting skills and live in less than admirable circumstances, there is nothing in the record to show that continuing the legal relationship of parent and child is inherently harmful to the children. See In the Interest of D. F., supra.

This is especially true in light of the foster father’s recent death. Termination of parental rights at the present time could seriously harm the children and cause further symptoms of reactive attachment disorder given the absence of a foster father and the foster mother’s expressed concern that adoption of the children may no longer be an option for her. The juvenile court stated that it “cannot legally consider” evidence of the foster father’s death or the father’s rehire with his old employer as a basis for a motion for new trial or motion to set aside the judgment of the court because it “must consider the evidence that was available at the time of the trial of the matter.” However, evidence of the father’s rehire was in the record at the time of the trial. In addition, the juvenile court misinterpreted the two cases upon which it relied.

In In the Interest of K. C., 249 Ga. App. 680, 681 (1) (549 SE2d 737) (2001), this Court noted in dicta that “we know of no statute or court rule that permits a de novo evidentiary hearing to be held on [motion for] reconsideration.” In In the Interest of C. M., 282 Ga. App. 502, 507-508 (3) (639 SE2d 323) (2006), we found that a trial court did not abuse its discretion in declining to admit irrelevant evidence during a hearing on a motion for new trial when the new evidence did not change the circumstances supporting termination. Neither of these cases hold, as a matter of law, that a juvenile court is precluded from exercising its discretion to consider additional evidence on a motion for new trial if circumstances require such consideration. Given a juvenile court’s plenary authority to modify its order based on changed circumstances, the trial court abused its discretion as a matter of law in refusing to consider the impact of the foster father’s death and the father’s recent reemployment in its ruling on the parents’ motion for new trial. See, e.g., In the Interest of A. M., 324 Ga. App. 512, 516 (3) (751 SE2d 144) (2013) (juvenile court may set aside or modify decision if newly discovered evidence or changed circumstances require best interest of child); In the Interest of J. N. F., 306 Ga. App. 313, 315 (701 SE2d 925) (2010) (juvenile court may change, modify, or vacate order on ground that changed circumstances require best interest of child).

In the instant case, the evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue, that continued deprivation will seriously harm the children, or that termination of the parents’ parental rights is in the best interests of the children. “While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship.” (Citation and punctuation omitted.) In the Interest of A. A., 252 Ga. App. 167, 173 (2) (c) (555 SE2d 827) (2001). Termination of parental rights “is a remedy of last resort.” In the Interest of C. S., supra, 319 Ga. App. at 148 (1). Accordingly, we reverse the juvenile court’s order.

2. The parents also contend that the trial court erred in denying their motion for new trial because trial counsel’s failure to file a legitimation petition rendered her assistance ineffective. Because the issue of the father’s failure to timely legitimate the children may arise upon any retrial of the case, we address it here.

“[T]he right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.” (Citations, punctuation and footnote omitted.) In the Interest of H. S., 285 Ga. App. 839, 843-844 (648 SE2d 143) (2007). Accordingly, we have recognized that a parent has a right to effective assistance of counsel in defending against a termination petition. See In the Interest of S. N. H., 300 Ga. App. 321, 329 (5) (685 SE2d 290) (2009).

In order to prevail on a claim of ineffective assistance of counsel [the father] must show that [his] counsel’s performance was deficient and that the deficient performance was prejudicial to [his] defense. To meet the first prong of this test, [the father] must overcome the strong presumption that counsel’s performance fell within a wide range of professional conduct and that counsel’s decisions were ... made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case. The second prong requires [the father] to show there is a reasonable probability that, absent counsel’s unprofessional errors, the result of the trial would have been different.

(Citations and punctuation omitted.) In Interest of A. H. P., 232 Ga. App. 330, 334-335 (2) (500 SE2d 418) (1998).

Here, the evidence presented by the parents at the hearing on the motion for new trial meets this standard. Under the old Code, a nonlegitimated father lost all rights to his children and was not allowed to object to the termination of his parental rights. Former OCGA § 15-11-96 (h) and (i). Termination of his parental rights was mandatory. In the Interest of T. B. R., supra, 304 Ga. App. at 786 (4); In the Interest of D. W., 264 Ga. App. 833, 834-835 (1) (592 SE2d 679) (2003). Trial counsel for the parents in this case took responsibility for failing to file a legitimation petition and noted that this failure was due to an oversight on her part and not to any trial strategy or reasonable professional judgment. Given that the failure resulted in the father’s inability to challenge the termination of his parental rights, the first prong of the test clearly is met. See In the Interest of T. B. R., supra.

Decided November 20, 2015.

Jo Carol Nesset-Sale, for appellants.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Chad A. Hunt, Assistant Attorneys General, for appellee.

Regarding the second prong, the juvenile court stated that it would have terminated the father’s parental rights on grounds that were not impacted by the failure of the father’s counsel, and thus the father is unable to establish prejudice. However, under the old Code, the juvenile court had no authority to consider any basis other than the father’s lack of standing to terminate his parental rights. See In the Interest of T. B. R., supra, 304 Ga. App. at 786 (4); In the Interest of D. W., supra, 264 Ga. App. at 834-835 (1). And, given the father’s unusually persistent efforts to maintain his relationship with his children, his obvious bond and positive interaction with the children, his recent reemployment with the company for which he had worked for 23 years, and DFACS’s failure to show either continued deprivation or that such deprivation would likely cause serious harm to the children, the father has shown there is a reasonable probability that, absent counsel’s unprofessional errors, the result of the trial would have been different.

Based on trial counsel’s ineffective assistance, we remand the case with direction that the father be given 30 days from the date of this order to file a petition to legitimate the children or an acknowledgment of legitimation consistent with the provisions of the old Code.

Judgment reversed and case remanded with direction.

Doyle, C. J., and Phipps, P. J., concur.

       We note that this statutory provision was superseded on January 1, 2014 by OCGA § 15-11-283 (d), see Ga. L. 2013, p. 294, § 5-1, but it is undisputed that the old statute applies in this case.

       The new Code now gives the juvenile court discretion whether to terminate the parental rights of nonlegitimated fathers. OCGA § 15-11-283 (b).


author: Branch, Judge.

text:
    A15A1471.
    WALTERS v. THE STATE.
    (780 SE2d 720)
   Branch, Judge.

A jury found Alonzo Ricardo Walters guilty of aggravated assault and possession of a knife during the commission of a felony. He appeals, arguing that the trial court improperly allowed the State to introduce the victim’s prior consistent statement. Finding no reversible error, we affirm.

Viewed in a light favorable to the verdict, the record shows that around 4:00 a.m. on October 10, 2012, Valerie Mike stopped at a convenience store in Savannah to buy gas on her way to work. She testified that as she was pumping gas, a man approached her and asked for a cigarette, but Mike told him that she did not smoke. The man then pulled out a butcher knife and demanded money. Mike screamed, ran into the store, and called 911 on her cell phone, while the man fled on foot.

The clerk who was working in the store testified that she heard a scream, looked out the store window, saw Mike standing face-to-face with a man who had been in the store several times earlier that morning, and then saw Mike running toward the store. When Mike was halfway to the door, the clerk heard her scream, “Oh my God, oh my God, he’s trying to rob me.” When Mike entered the store, the clerk heard her say, “Oh my God, he got a knife.” At trial, the clerk identified Walters as the man in question.

Officer James Neff of the Savannah-Chatham Metropolitan Police Department responded to the 911 call. Neff testified that Mike was “almost crying, shaking, [and] upset,” but he was able to calm her down so that she could tell him what had happened. Neff then related what Mike had told him — that she had been pumping gas when a man approached her and asked for a cigarette, then pulled out a knife and demanded money, after which she screamed and ran into the store. As Neff was recounting Mike’s story, defense counsel interrupted: “Your Honor, I’m going to object to this line of questioning. It’s just simply to bolster what Ms. Mike has already testified to. She hasn’t been impeached on that.” The prosecutor responded, “I don’t believe it’s hearsay. I believe that she’s already testified and was subject to cross-examination, so I don’t feel that it’s hearsay.” The court overruled defense counsel’s objection, and Neff finished recapping what Mike had said.

Neff then testified that after speaking with Mike, he broadcast her description of her assailant over the police radio, and within minutes other officers found a man in the area matching the description, along with a large butcher knife in some nearby bushes. Neff took Mike to the man’s location for a showup, and she positively identified the man — who turned out to be Walters — as the one who had threatened her with the knife.

Walters was arrested, taken to the police station, and interviewed by a detective. He told the detective that he had first encountered Mike when she pulled into the gas station and yelled at him to move out of the way, prompting him to respond with an expletive. Walters said that Mike was “reaching for something,” so he pulled out his knife in self-defense. He denied asking her for cigarettes or money.

Walters gave a different account at trial. There, he admitted that he had approached Mike while she was pumping gas, but claimed that “it wasn’t about robbery. It was about something else.” Specifically, Walters testified that he wanted “to see if I can have sex with [Mike].” He insisted that he had displayed his knife only in self-defense after seeing Mike reach for something in her clothing. Walters explained that he had lied to the detective about his initial encounter with Mike because he was afraid of being charged with sexual assault.

Walters was charged with aggravated assault and possession of a knife during the commission of a felony. At trial, his defense — as argued by his attorney — was that “Valerie Mike jumped to the wrong conclusion because of [her] misperceptions about what was actually going on and she became hysterical, which clouded her judgment and perception.” The jury found him guilty of both crimes.

On appeal, Walters asserts one enumeration of error — that the trial court erred by allowing Neff to testify about what Mike had told him. In particular, Walters argues that the State had no permissible reason to introduce Mike’s prior consistent statement because “there was no charge of recent fabrication, improper influence or improper motive asserted by Mr. Walters during his cross examination of Ms. Mike.” We agree that Walters did not attack Mike’s credibility by charging her with recent fabrication or improper influence or motive. Under Georgia’s new Evidence Code, however, our analysis does not end there.

Before the implementation of the new Evidence Code, “Georgia had no statute governing the admission of prior consistent statements.” Grant v. State, 326 Ga. App. 121, 128 (4), n. 4 (756 SE2d 255) (2014). Case law established a general rule that “a witness’ testimony cannot be fortified or corroborated by his own prior consistent statements.” Parker v. State, 162 Ga. App. 271, 274 (5) (290 SE2d 518) (1982) (citations omitted). Such statements could be admitted, however, to rehabilitate a witness if the veracity of the witness’s trial testimony had been placed in issue at trial and the witness was present at trial and available for cross-examination. Williams v. State, 292 Ga. 844, 849 (3) (c) (742 SE2d 445) (2013). A witness’s veracity was placed in issue only in limited circumstances — if “affirmative charges of recent fabrication, improper influence, or improper motive [were] raised during cross-examination.” Id. (citation omitted). In the absence of affirmative charges of recent fabrication or improper influence or motive, prior consistent statements were “hearsay evidence improperly admitted to bolster the witness’s credibility in the eyes of the jury.” Baugh v. State, 276 Ga. 736, 738 (2) (585 SE2d 616) (2003) (citations and punctuation omitted).

The new Evidence Code, effective January 1, 2013, specifically addresses prior consistent statements:

A prior consistent statement shall be admissible to rehabilitate a witness if the prior consistent statement logically rebuts an attack made on the witness’s credibility. A general attack on a witness’s credibility with evidence offered under Code Section 24-6-608 or 24-6-609[] shall not permit rehabilitation under this subsection. If a prior consistent statement is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement shall have been made before the alleged recent fabrication or improper influence or motive arose.

OCGA § 24-6-613 (c) (emphasis supplied). According to its plain terms, this new rule allows the admission of prior consistent statements if they logically rebut any attack on a witness’s credibility, except for attacks upon his character for truthfulness or evidence of his prior convictions. Accordingly, our inquiry is not limited to asking whether Walters impugned Mike’s credibility by charging her with recent fabrication or improper influence or motive. We must also consider whether Walters attacked Mike’s credibility on other grounds. Pre-OCGA § 24-6-613 precedent is of little help in addressing this question because our definition of what constituted an attack on credibility was narrower then. We therefore turn to federal law. See Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015) (“[W]here the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.”).

Under federal law, the admissibility of prior consistent statements is governed by Federal Rule of Evidence 801 (d) (1) (B), which was recently amended. The version of that rule that was in effect when OCGA § 24-6-613 was enacted provided that a prior consistent statement was inadmissible hearsay unless it was made by a testifying witness available for cross-examination and was “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Tome v. United States, 513 U. S. 150, 157 (II) (A) (115 SCt 696, 130 LE2d 574) (1995), citing Fed. R. Evid. 801 (d) (1) (B) (1974). Under the then-existing federal rule, “[p]rior consistent statements may not be admitted to counter all forms of impeachment,” but only to “rebut a charge of ‘recent fabrication or improper influence or motive.’ ” Tome, 513 U. S. at 157 (II) (A) (citation and punctuation omitted). Thus, OCGA § 24-6-613 does not mirror the former federal rule, which — like Georgia law before the new Evidence Code — narrowly defined the kind of credibility attack that could justify the admission of a prior consistent statement. Accordingly, federal precedent interpreting the former federal rule is also of little help here.

The federal rule was amended in 2014, however, and it now provides that a declarant-witness’s prior consistent statement is admissible if offered “(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground.” Fed. R. Evid. 801 (d) (1) (B) (2014) (emphasis supplied). This language is not identical to that of OCGA § 24-6-613 (c), which allows a prior consistent statement if it “logically rebuts an attack made on the witness’s credibility.” Nevertheless, OCGA § 24-6-613 (c) and newly amended Fed. R. Evid. 801 (d) (2) (B) both broaden the scope of credibility attacks that can trigger admissibility of a prior consistent statement, such that precedent interpreting the latter may be useful in construing the former. Given the newness of the federal rule, there is little precedent interpreting it, and none addressing the issue we face here.

But the advisory committee notes accompanying the new federal rule may be instructive:

[The former rule] covered only those consistent statements that were offered to rebut charges of recent fabrication or improper motive or influence. The Rule did not, for example, provide for substantive admissibility of consistent statements that are probative to explain what otherwise appears to be an inconsistency in the witness’s testimony. Nor did it cover consistent statements that would be probative to rebut a charge of faulty memory. Thus, the Rule left many prior consistent statements potentially admissible only for the limited purpose of rehabilitating a witness’s credibility. . . . The intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness — such as the charges of inconsistency or faulty memory. The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked.

See Fed. R. Evid. 801, Advisory Committee Notes. Thus, the advisory committee notes indicate that while prior consistent statements remain inadmissible under federal law to bolster a witness’s testimony, they may now come in to rebut a broad range of attacks on a testifying witness’s credibility.

With this backdrop, we return to the question of whether Walters attacked Mike’s credibility in some way other than by charging her with recent fabrication or improper influence or motive. Our review of the record shows that he did. On cross-examination, defense counsel asked Mike about her 911 call, which had been played for the jury during her direct examination but apparently was unintelligible in parts. Defense counsel asked Mike several times whether she had told the 911 operator that Walters had a gun or a knife. Defense counsel also established that Mike was very upset by the incident. Later, Walters took the stand and testified that he had actually approached Mike for sex and had brandished his knife only when he thought she was reaching for a weapon of her own. During closing argument, defense counsel stated: “Was Mike lying? No. I don’t say she’s lying. I think she’s convinced that what she said was the truth.” Counsel suggested, however, that Mike became so upset when Walters approached her that she misinterpreted his intentions. Counsel further told the jury that they should acquit Walters “[i]f your mind is unsettled, wavering, or unsatisfied about whether or not Ms. Mike is believable or if her memory of events was faulty because of hysteria.” Thus, while Walters did not call Mike a liar, he nevertheless attacked her credibility by suggesting that she had misidentified Walters’s weapon during her 911 call and that her account of the events was not believable due to her heightened emotional state.

Because Mike’s credibility was attacked, her prior consistent statements to Neff were admissible if they “logically rebut[ted]” the attack. OCGA § 24-6-613 (c). Mike’s prior statement that her assailant had wielded a knife logically rebutted Walters’ suggestion that she had misidentified the weapon. And Mike’s prior statement that she did not scream and flee until Walters pulled the knife logically rebutted his claim that she was so upset when he initially approached her that she misconstrued his intentions. Thus, we conclude that the portions of Neff’s testimony recounting these statements were admissible under OCGA § 24-6-613 (c).

That leaves the remainder of Neff’s testimony about Mike’s statement — that Walters asked for a cigarette, then pulled out a knife and demanded money. We question whether the consistency between this part of Mike’s account to the responding officer and her testimony at trial logically rebuts Walters’s charge that her perception of the entire encounter was clouded by hysteria. We conclude, however, that even if the admission of the remainder of Mike’s prior consistent statement was erroneous, any error was harmless.

Because “[t]he improper admission of bolstering evidence is a non-constitutional, evidentiary error,... we must determine whether it is ‘highly probable’ that the error did not contribute to the jury’s guilty verdict.” Cowart v. State, 294 Ga. 333, 341 (4) (b) (751 SE2d 399) (2013) (citation omitted). In making this determination, we may not rely on the fact that Mike gave testimony at trial that was consistent with her prior statements to Neff, “as the very nature of the error in admitting the prior consistent statement is that it is repetitive of that to which the witness has already testified.” Character v. State, 285 Ga. 112, 120 (6) (674 SE2d 280) (2009) (punctuation and footnote omitted). However, we note that the sales clerk working at the gas station testified that she heard Mike scream, “oh my God, he’s trying to rob me” as she ran into the store. Police found Walters with a knife nearby, and he later admitted to a detective that he had encountered Mike at the gas station and eventually pulled out a knife. To the extent that the case boiled down to a credibility contest between Mike and Walters as to whether he asked her for a cigarette and money (as she claimed) or for sex (as he claimed), the fact that Walters told a different story to the investigating detective than he did at trial undermined his credibility, while there was no evidence that Mike had made any prior inconsistent statements. Under these circumstances, we conclude that it is not probable that the admission of the remainder of Mike’s prior consistent statement contributed to the verdict and that any error was therefore harmless.

Decided November 20, 2015.

Meg E. Heap, District Attorney, Lyndsey H. Rudder, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 24-6-608 concerns evidence of a witness’s conduct and character for truthfulness, and OCGA § 24-6-609 involves impeachment by evidence of a prior conviction.

       Georgia’s new hearsay rule also addresses prior consistent statements, as follows: “An out-of-court statement shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under Code Section 24-6-613 or is otherwise admissible under this chapter.” OCGA § 24-8-801 (d) (1) (A).

       “[A]s judges, we should only be concerned with what laws actually say, not by what the people who drafted the laws intended.” Day v. Floyd County Bd. of Ed., 333 Ga. App. 144, 151 (775 SE2d 622) (2015) (Dillard, J., concurring) (punctuation and footnotes omitted). Unlike ordinary legislative history, however, advisory committee notes are generated by a committee of judges, professors, and practitioners who are appointed by the Chief Justice of the United States and who engage in a lengthy process of drafting and revision, culminating in approval by the Supreme Court and submission to Congress. See Thomas E. Baker, An Introduction to Federal Court Rulemaking Procedure, 22 Tex. Tech. L. Rev. 323, 329-331 (1991); see also 28 USC § 2072 (“Rules of procedure and evidence; power to prescribe”). Although advisory committee notes cannot change the plain meaning of the federal rules of evidence, they are “assuredly persuasive scholarly commentaries — ordinarily the most persuasive — concerning the meaning of the [r]ules.” Tome, 513 U. S. at 167 (Scalia, J., concurring in part and concurring in the judgment); see also Horenkamp v. Van Winkle and Co., 402 F3d 1129, 1132 (II) (11th Cir. 2005) (advisory committee notes “are nearly universally accorded great weight in interpreting federal rules”) (citation and punctuation omitted).

       Although some of these credibility attacks occurred after Mike’s prior consistent statement was introduced through Neff’s testimony, a prior consistent statement may be admissible if the testifying witness’s credibility was “eventually attacked” at a later point in the trial. Pate v. State, 315 Ga. App. 205, 207 (1) (a) (726 SE2d 691) (2012), citing Sterling v. State, 267 Ga. 209, 213 (9) (477 SE2d 807) (1996).


author: Ray, Judge.

text:
    A15A1512.
    BORD et al. v. HILLMAN et al.
    (780 SE2d 725)
   Ray, Judge.

Anna Bord and Victor M. Bondar (“Bord and Bondar”) appeal from the trial court’s order granting Amy L. Hillman and Daniel A. Hillman’s (“Hillmans”) motion for partial summary judgment as to counterclaims related to harm allegedly caused by a retaining wall separating Bord and Bondar’s property from the Hillmans’s property. For the reasons that follow, we reverse.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably to the party opposing the motion. Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment. When this Court reviews the grant or denial of a motion for summary judgment, it conducts a de novo review of the law and the evidence.

(Citation omitted.) Clark v. City of Atlanta, 322 Ga.App. 151, 152 (744 SE2d 122) (2013).

The procedural history, in pertinent part, is that on September 6, 2013, the Hillmans filed suit against their next-door neighbors, Bord and Bondar, for injunctive relief, nuisance, trespass, negligence, negligence per se, intentional infliction of emotional distress, punitive damages, and attorney fees. The Hillmans alleged that certain actions of Bord and Bondar resulted in increased water runoff on the Hillmans’s land, which caused damage to their property. On October 16, 2013, Bord and Bondar answered and counterclaimed for injunc-tive relief, nuisance, trespass, negligence, negligence per se, tortious interference with business relations, slander and oral defamation, punitive damages, attorney fees and costs of litigation. Bord and Bondar alleged that when the Hillmans constructed a retaining wall, it caused water to back up onto Bord and Bondar’s property, which caused damage to the property, including, but not limited to, flooding in their basement.

The Hillmans filed a motion for partial summary judgment on all of Bord and Bondar’s counterclaims, specifically as these claims relate to the retaining wall. Following oral argument, the trial court granted that motion, finding, inter alia, that the evidence demonstrated no material questions of fact as to whether the retaining wall caused any of the harm alleged.

The facts, viewed most favorably to Bord and Bondar as the nonmovants, show that the wall built by the Hillmans separates the Hillmans’s property from Bord and Bondar’s property. Around July 26, 2012, Bord noticed the carpet in her basement was wet after a heavy rain. Upon discovery of the flooding, Bord and Bondar filed an insurance claim. The insurance company sent Richard Grimshaw to investigate the water damage. He determined that the basement flooding was caused by the gathering of water on the outside of the house. In his report to the insurance company, Grimshaw stated that, in his opinion, construction deficiencies caused the water in the basement.

Upon the start of litigation, Bord and Bondar hired an expert hydrologist, George Henry Baltz III, to determine, among other things, whether the wall caused the flooding in Bord and Bondar’s basement. Baltz was told where Grimshaw believed water had entered the basement, and Baltz used that point to calculate the elevation of water that would occur during storms on the property. Baltz’s analysis was not meant to determine exactly where water would stop on the property. Instead, Baltz’s calculations determined how much water would pool in a particular cross-section of the property.

Baltz plotted the measurements from the property into a hydro-flow program to determine the depth of water that would occur on Bord and Bondar’s property in a 25-year flood event and a 100-year flood event before and after the wall. Before the wall was built, a 25-year event would cause 0.6 feet of water to pool on Bord and Bondar’s land and a 100-year event would cause 0.64 feet of water to pool on Bord and Bondar’s land. After the wall was built, a 2 5-year event would cause 0.74 feet of water to pool, and a 100-year event would cause 0.79 feet of water to pool in the same area.

The cross-section, on which Baltz based his calculations, was at 937.80 feet above sea level. Using Baltz’s results, a 25-year event would cause water in that cross-section to rise to 938.54 feet above sea level and a 100-year event would cause water to rise to 938.59 feet above sea level. Since Bord and Bondar’s house sits at 939 feet above sea level, both of these events are still below the grade of Bord and Bondar’s house. However, Baltz also testified that the construction of the wall would have changed the way that water was running and pooling between the two houses.

Bord and Bondar supplemented their expert’s findings with personal observations. They testified that water has been in their basement two times since the construction of the wall. Further, in Bondar’s deposition, he testified that the problem with his property was “that retaining wall that’s keeping water on my property and flooding my basement.”

The Hillmans hired their own expert hydrologist, Glynn Forrest Groszmann, P.E., to determine how the wall affected water pooling on the two properties. During Groszmann’s deposition, he reviewed Baltz’s calculations and found that those concerning the 25-year event were “appropriate.” However, because 100-year events are normally used in life or death situations, not basement flooding, he felt the measurement was inappropriate in this case. In an affidavit attached to the Hillmans’s brief in support of summary judgment, Groszmann stated that in his opinion, the wall constructed by the Hillmans may have caused a “negligible and insignificant” increase in water concentration in the area.

1. Bord and Bondar contend the trial court erred in concluding as a matter of law that the retaining wall between the two properties was not the cause in fact of any damage to Bord and Bondar’s property. We agree.

To recover under a nuisance claim, “[t]he plaintiff must show the existence of the nuisance complained of, that he or she has suffered injury, and that the injury complained of was caused by the alleged nuisance.” (Citation and punctuation omitted.) Rice v. Six Flags Over Ga., LLC, 257 Ga. App. 864, 868 (572 SE2d 322) (2002).

Causation is an essential element of nuisance, trespass, and negligence claims. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.

(Footnote omitted.) Alexander v. Hulsey Environmental Svcs., Inc., 306 Ga. App. 459, 462 (3) (702 SE2d 435) (2010). “The existence of proximate cause is a question of fact for the jury except in palpable, clear, and indisputable cases.” (Citation and punctuation omitted.) Sprayberry Crossing Partnership v. Phenix Supply Co., 274 Ga. App. 364, 365 (1) (617 SE2d 622) (2005).

In a nuisance action, recovery is authorized for damage to both person and property. Unlawful interference with the right of the owner to enjoy possession of his property may be an element of damages. The measure of damages for discomfort, disrupted peace of mind, unhappiness and annoyance caused by a nuisance is for the enlightened conscience of the jury.

(Citations and punctuation omitted; emphasis supplied.) Woodmen of the World, Unit No. 3 v. Jordan, 231 Ga. App. 517, 519 (2) (499 SE2d 900) (1998).

For causation, Bord and Bondar submit Baltz’s testimony that the wall would have changed the way water flowed and pooled between the two properties. They also present personal observations that the wall is causing an increased amount of water to sit on their property and flood their basement. For damages, in their nuisance claim, Bord and Bondar assert that the wall has interfered with the full use and enjoyment of their property. In addition, they assert that the wall has resulted in “diversion of storm water runoff, eroding soils, and flooding in [their] residence.”

The trial court granted summary judgment for all claims related to the retaining wall and found that Bord and Bondar “failed to come forth with evidence creating a question of material fact as to causation.” (Emphasis supplied.) The court relied heavily on the finding that Bord and Bondar’s personal observations alone are “insufficient evidence to raise a question of material fact on the issue of causation.” In addition, the trial court found Baltz’s calculations, concerning the increase in water pooling on the property after the wall, indicated a lack of causation because the water increase Baltz found was still below the grade of Bord and Bondar’s house. Thus, it concluded that Bord and Bondar’s counterclaims for nuisance, negligence, and negligence per se as they relate to the retaining wall failed for lack of causation. The trial court further found that Bord and Bondar’s claims for punitive damages and attorney fees relating to the retaining wall also failed.

Contrary to the trial court’s conclusion, we believe that some evidence exists for causation in Bord and Bondar’s counterclaims. “[OJpinion evidence in opposition to a motion for summary judgment can be sufficient to preclude a grant of summary judgment.” (Citations omitted.) Hammond v. City of Warner Robins, 224 Ga. App. 684, 692 (1) (482 SE2d 422) (1997) (reversing the grant of summary judgment based on expert testimony on the elements of a nuisance claim).

The record includes expert testimony from both sides and personal observations which all indicate the wall caused an increase in water backing up or pooling on Bord and Bondar’s property. “Although property must accept the natural runoff of water from neighboring lands, an artificial increase or concentration of water discharge may give rise to a cause of action.” (Citation and punctuation omitted.) Greenwald v. Kersh, 265 Ga. App. 196, 197 (1) (593 SE2d 381) (2004). See also Mallard v. Pye, 215 Ga. 645, 646 (2) (112 SE2d 620) (1960). Bord and Bondar’s expert, Baltz, has calculations demonstrating that the wall caused an increase in the amount of water pooling on the property. Baltz also testified that the wall would have changed the way water runs between the two houses. This testimony is bolstered by Bord and Bondar’s personal observations that the wall is causing increased water pooling on their land. Further, the Hillmans’ expert, Groszmann, testified that the wall caused an increase in water concentration on the property, although he deemed it “negligible and insignificant.” However, “[w]hen a surface-water invasion has taken place, whether it amounts to a compensable tort is a question of fact for the jury.” (Citation omitted.) Payne v. Carson, 215 Ga. App. 253, 254 (1) (450 SE2d 273) (1994).

The trial court’s order confused causation with damages. While the water increase caused by the wall was below the grade of Bord and Bondar’s house, this fact does not relate to causation. It relates to damages. Since Bord and Bondar are claiming damages beyond the flooding in their basement, such as loss of enjoyment of their land, showing an increase in water on the property at all is sufficient to create evidence of causation.

We conclude that the evidence, when viewed in favor of Bord and Bondar as the nonmovants, was sufficient to create a jury question as to causation regarding their counterclaims for nuisance, negligence, negligence per se, injunctive relief, punitive damages, and attorney fees. Accordingly, the trial court’s grant of partial summary judgment must be reversed.

2. Bord and Bondar contend that the trial court erred by considering portions of Glynn Groszmann’s affidavit that they argue contradicts his deposition testimony. We disagree.

Bord and Bondar argue that contradictory portions of Grosz-mann’s testimony should not be considered by the trial court under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) and its progeny. In accord with Prophecy, we have held that

Decided November 20, 2015.

Weissman, Nowack, Curry & Wilco, David S. Klein, for appellants.

Carlock, Copeland & Stair, Douglas W. Smith, William K. Owens, Jr.; Hill, Kertscher & Wharton, Blakely H. Frye; Tatum, Hillman, Hickerson & Powell, Elizabeth T. Young; Wlson Brock & Irby, KylerL. Wse, for appellees.

[a] ¡though we construe the evidence most favorably to appellant as the party opposing the motion for summary judgment, where there is a direct contradiction in the testimony of the respondent as to a material issue of fact, that party’s unfavorable testimony will be taken against him.

(Citation omitted; emphasis in original.) Travick v. Lee, 278 Ga. App. 823, 826 (630 SE2d 99) (2006). As the emphasized language makes clear, “[t]he Prophecy rule applies only to self-contradictions in a party’s sworn testimony. It does not apply to . . . non-party witness testimony[.]” (Footnote omitted.) CSX Transp., Inc. v. Belcher, 276 Ga. 522, 523 (579 SE2d 737) (2003). Groszmann is a non-party witness. Thus, Prophecy does not apply.

Further, upon review of the record, we find no contradictory portions of Groszmann’s testimony. Bord and Bondar’s brief cites to Groszmann’s deposition testimony where he found Baltz’s numbers for the 25-year event after the wall was built to be “appropriate.” Then, Bord and Bondar assert that Groszmann contradicted this testimony later when he stated that “even if [Baltz’s] calculations were correct, they do not demonstrate that the construction of the Wall has caused any actual hydrological damage to the Bondar/Bord Property.” But, this mischaracterizes Groszmann’s statements. Grosz-mann goes on to say, apparently accepting the calculations as true, that they “verify” that the depth of pooled water would not be sufficient to infiltrate Bord and Bondar’s basement. Groszmann never stated that he believed Baltz’s calculations were incorrect; thus, there is no conflict on this point.

Judgment reversed.

Barnes, P. J., and McMillian, J., concur.

       Bord and Bondar later withdrew the tortious interference with business relations and slander and oral defamation claims.

       These measurements are based on simple calculations:
      A 25-year event: 937.80 + 0.74 = 938.54
      A 100-year event: 937.80 + 0.79 = 938.59

       In their appellate brief, Bord and Bondar contend that they have also experienced additional erosion, sediment discharges, and flooding issues in their yard. We could not find those facts in the record.

       In their first enumeration of error, Bord and Bondar, citing Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393) (1969), contend that the trial court erred in basing its grant of partial summary judgment solely on the opinion testimony of expert witnesses. However, we need not reach this issue as there is some evidence of causation, however slight, necessitating a reversal of this grant of partial summary judgment.

       We acknowledge that this analysis considers damages not merely related to the house, but the claims as a whole. We do not mean to imply that a grant of partial summary judgment with respect to the damage that the wall allegedly caused to the house would not have been appropriate.

       Since the expert testimony suggesting causation is sufficient to reverse the trial court’s grant of summary judgment, this Court does not consider whether Bord and Bondar’s personal observations, standing alone, would be enough to raise an issue of causation. See Newton’s Crest Homeowners’ Assn. v. Camp, 306 Ga. App. 207, 211-212 (1) (702 SE2d 41) (2010).

       The Hillmans moved for partial summary judgment on all of Bord and Bondar’s counterclaims. We note that Bord and Bondar had amended their trespass claim to include the allegation that the Hillmans unlawfully diverted water onto their property. However, the trial court did not address Bord and Bondar’s trespass claim in its ruling on the motion for partial summary judgment.


text:
    A15A1601.
    MATABARAHONA v. THE STATE.
    (780 SE2d 731)
   Ray, Judge.

After a jury trial, Manuel Matabarahona was convicted of one count of child molestation (OCGA § 16-6-4 (a) (1)). Matabarahona appeals from his conviction and the denial of his amended motion for new trial, contending that the evidence was insufficient to support the jury’s verdict and that he was denied the right to confront the child-victim at trial. He also contends that he had ineffective assistance of counsel. For the reasons that follow, we affirm.

1. Matabarahona argues that the evidence was insufficient to support his conviction for child molestation. We disagree.

On appeal from a criminal conviction, we review the evidence in the light most favorable to the jury’s verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). The evidence shows that Matabarahona was at a birthday party at a friend’s house over Memorial Day weekend in 2008. The eight-year-old victim (“D. A.”) and his parents were staying at the house for the weekend. The incident took place on Sunday of that weekend, and many of the adults at the residence, including Matabarahona, had been drinking alcohol that day.

Around lunchtime, D. A.’s mother realized that she had not seen D. A. for a while, so she began to look for him. After searching the majority of the house, she went downstairs and opened a door to a room, whereupon she found Matabarahona sitting on the couch, leaning back, with his pants completely open and his arm around D. A.’s waist. She testified that she “immediately . . . realized something was wrong. [D. A.] had a scared look on his face.” She further testified that the lighting in the room had a dimmer-switch and that the lights had been turned down so that the room was dimly lit. After removing D. A. from the room, D. A.’s mother asked him whether Matabarahona had tried to get him to touch him, and D. A. responded ‘Tes, but I didn’t.”

D. A.’s mother did not immediately tell her husband what had happened because her husband had been drinking and she feared that he might try to kill Matabarahona. She did not question D. A. any further about the details because “he wasn’t forthcoming with the information [and] I didn’t want to traumatize him more [.]” After the family returned home, she told her husband what had happened, and they discussed the proper course of action for a few days before contacting the police.

Detective Hicks, who was a detective with the Cherokee County Sheriff’s Office at the time of the incident, was assigned to investigate the case. Detective Hicks set up a forensic interview for D. A. with Linda Bishop, a licensed psychotherapist who specialized in forensic interviewing, at the Anna Crawford Children’s Center. The interview between D. A. and Bishop was recorded on video. During the interview, D. A. was able to describe Matabarahona’s penis to Bishop.

OCGA § 16-6-4 (a) (1) provides that “[a] person commits the offense of child molestation when such person... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person].]”

We find that the above evidence was sufficient to support Mata-barahona’s conviction for child molestation.

2. Matabarahona argues that his trial counsel was ineffective in failing to object to a portion of the State’s questioning of a witness at trial. His argument is without merit.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show (1) that his counsel’s performance was deficient and (2) that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 687 (III), 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). “The likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). Indeed, “[t]he burden on [Matabara-hona] to make this showing is a heavy one, and if he fails to meet his burden of proving either prong, then we do not need to examine the other prong.” (Citations and punctuation omitted.) Robinson v. State, 329 Ga. App. 562, 563 (765 SE2d 715) (2014). Furthermore, there is a strong presumption that trial counsel’s performance fell within the wide range of reasonable professional assistance. Hartsfield v. State, 294 Ga. 883, 887 (3) (757 SE2d 90) (2014). When a trial court determines that a defendant did not receive ineffective assistance of counsel, we will affirm that decision on appeal unless it is clearly erroneous, Muldrow v. State, 322 Ga. App. 190, 193 (2) (b) (744 SE2d 413) (2013), “but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hill, supra at 164 (4).

During the State’s direct examination of Detective Hicks, the following exchange occurred:

Q: Now did you ever attempt to make phone calls to the Defendant?
A: We tried on several occasions to contact the Defendant and line up for him to come in and speak with us.
Q: Okay. Is this something you routinely like to do in these types of cases, crimes against children?
A: Yes, it is.
Q: Okay. And were you ever able to set up the interview?
A: We were never able to set up an interview with [Matabara-hona].

Matabarahona argues that this particular line of questioning by the State was intended to and did elicit improper testimony regarding the defendant’s failure to make a statement to law enforcement during the investigation. We disagree.

First, it is important to note the context in which this exchange occurred. Here, the State had been questioning Detective Hicks about the steps he took in investigating the incident. Hicks had just testified about his interview with D.Á.’s mother, andhe had explained why he did not conduct a formal interview with D. A.’s father. He also acknowledged that he relied on information obtained from D. A.’s forensic interview as a part of his investigation. The State then asked Detective Hicks if he had interviewed anyone else, including Mata-barahona. After Detective Hicks testified that his efforts to contact Matabarahona to set up an interview were unsuccessful, the State did not pursue the issue any further. Based on the context of the exchange, we find that the State did not intend to elicit improper testimony regarding Matabarahona’s silence.

Furthermore, upon review of Detective Hicks’ responses to this line of questioning, there was no indication that anyone successfully made contact with Matabarahona, nor was there any inference that Matabarahona was avoiding such contact. The State never suggested that Detective Hicks had any direct communication with Matabara-hona prior to his arrest.

Second, even if this line of questioning was somehow improper, there must still be prejudice in order to succeed on an ineffective assistance of counsel claim based on the failure to object. “[Testimony about the defendant remaining silent is not deemed prejudicial if it is made during a narrative on the part of the authorities of a course of events and apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant.” (Citation and punctuation omitted.) Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008). Here, Hicks’ testimony was made during Hicks’ narrative of the course of his investigation. Nothing about the way it was presented indicates that the State intended it to prejudice the jury. Moreover, the challenged testimony was “not intended to reflect on [Matabarahona’s] guilt and it was not probative on that issue. Thus, the [testimony] was not so fundamentally unfair as to deny him due process.” (Citation and punctuation omitted.) Griffin v. State, 331 Ga. App. 550, 553-554 (2) (a) (769 SE2d 514) (2015). As Matabara-hona has failed to show that he was prejudiced by trial counsel’s failure to object to the line of questioning, it is unnecessary for us to determine whether trial counsel’s performance was deficient.

3. Matabarahona claims that he was denied the right to confrontation when D. A. was not called to testify by the State. We find no reversible error.

At the time of trial, child hearsay statements were governed by former OCGA § 24-3-16, which read:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

In Hatley v. State, 290 Ga. 480, 482 (722 SE2d 67) (2012), our Supreme Court considered the constitutionality of the Child Hearsay Statute in light of recent Supreme Court Confrontation Clause holdings. The Court upheld the constitutionality of the statute, construing it in such a way that it could survive a Confrontation Clause attack. In order to protect the defendant’s right of confrontation under the Child Hearsay Statute,

the prosecution [must] notify the defendant within a reasonable period of time prior to trial of its intent to use a child victim’s hearsay statements and to give the defendant an opportunity to raise a Confrontation Clause objection. If the defendant obj ects, and the State wishes to introduce hearsay statements under OCGA § 24-3-16, the State must present the child witness at trial; if the defendant does not object, the State can introduce the child victim’s hearsay statements subject to the trial court’s determination that the circumstances of the statements provide sufficient indicia of reliability.

Id. at 483-484 (I). Our legislature essentially adopted the Hatley Court’s holding when it enacted the new Evidence Code. Pursuant to OCGA § 24-8-820, the State is now required to notify the defendant in advance of its intention to introduce child hearsay statements and such child must testify at the trial unless the defendant waives the child’s testimony.

Immediately after the mother found D. A. in the room with Matabarahona, D. A. told his mother that Matabarahona had tried to get him to touch his penis, but that he did not do it. During the forensic interview with Bishop, D. A. stated that he had not looked at Matabarahona’s penis, but was able to describe it as having “hair on it.” The forensic interview was recorded, and the DVD was published to the jury during the course of Bishop’s testimony. D. A. did not testify.

Matabarahona objected to both the jury’s viewing of the interview and D. A.’s mother’s statements as being inadmissible hearsay. Objections were lodged both prior to trial and during trial. The trial court ruled that, unless the defense had a different argument during the mother’s testimony, it was going to allow D. A.’s statements to his mother to be admitted. Additionally, the trial court admitted the video of D. A.’s forensic interview under OCGA § 24-3-16, finding that “there are sufficient indicia of reliability for it to be played for the jury.”

The State argues that the applicable statute to this case is OCGA § 24-3-16, rather than OCGA § 24-8-820, as the crime occurred prior to the enactment of the new Evidence Code. However, even though the crime occurred prior to our Supreme Court’s decision in Hatley, the Confrontation Clause is a floor below which we cannot go. Therefore, we must apply the procedures announced in Hatley.

We have interpreted Hatley to merely require the child victim to be present at the courthouse. That way, if the defendant objects to the presentation of the hearsay evidence as a violation of his confrontation rights, the State may call the victim as a witness and still present the hearsay evidence. See Arbegast v. State, 332 Ga. App. 414, 422-423 (6) (a) (773 SE2d 283) (2015). If the defendant does not object on Confrontation Clause grounds, however, he is deemed to have waived the objection, and the State may present the hearsay testimony without any violation of the Confrontation Clause if the circumstances of the child’s statement provide sufficient indicia of reliability.

Here, it appears from the record that D. A. was present at the courthouse at the time of trial. Matabarahona could have raised a Confrontation Clause objection, but he failed to do so. Although he raised a hearsay objection, it was confined to the issue of the reliability of the statements. At no time did he raise the issue of his right to confront the child witness. Had he raised the confrontation grounds, the State could have called D. A. to testify. By objecting only on reliability grounds, the State was not required to call D. A. to testify; it was only required to establish that the circumstances of D. A.’s statements provided sufficient indicia of reliability. See Hatley, supra at 483-484 (I). The trial court found that the State met this burden.

Decided November 20, 2015

Sharon L. Hopkins, for appellant.

Shannon G. Wallace, District Attorney, Lara A. Snow, Cliff Head, Assistant District Attorneys, for appellee.

In light of Matabarahona’s failure to raise the issue of confrontation at the trial court, he is deemed to have waived it. See Leggett v. State, 331 Ga. App. 343, 346-347 (2) (b) (771 SE2d 50) (2015) (“[t]o preserve an objection as to a specific point, the objection must be on that specific ground in order for this court to consider it”) (citation and punctuation omitted).

Judgment affirmed.

Barnes, P. J., concurs. McMillian, J., concurs in judgment only.

       We agree with the State’s assertion on appeal that its purpose for the line of questioning was “to convey to the jury that Detective Hicks did try to conduct a fair and even-handed investigation as best he could before moving forward with an arrest warrant against [Mata-barahona].”