In the Interest Of: S. C. S, a Child (Mother)

SECOND DIVISION
ANDREWS, P. J.,
BRANCH and PETERSON, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

March 16, 2016

In the Court of Appeals of Georgia
A15A2226. IN THE INTEREST OF S. C. S., a child.
A15A2227. IN THE INTEREST OF A. W., a child.

BRANCH, Judge.

In these companion cases, the mother of S. C. S. and A. W. appeals from orders

of the Juvenile Court of Murray County finding each of the mother’s children to be

dependent and awarding custody of those children to the Murray County Department

of Family and Children Services (“DFACS” or “the Department”). In case number

A15A2226, the mother asserts that in finding S. C. S. to be dependent, the juvenile

court misstated or mischaracterized the relevant evidence. The mother further

contends that a review of the evidence actually presented shows that the State failed

to meet its burden of proving S. C. S.’s dependency by clear and convincing evidence.
Finally, the mother argues that the State failed to prove that she was an unfit parent

such that removal of S. C. S. from her custody was warranted.

In case number A15A2227, the mother argues that the State failed to prove by

clear and convincing evidence either that A. W. was a dependent child or that

removal of A. W. from the mother’s custody was warranted. The mother also

contends that the juvenile court erred when it found that the State had made

reasonable efforts to prevent A. W.’s removal from the mother’s custody.

For reasons explained more fully below, we find no error by the juvenile court

in either case and we therefore affirm the judgment in each case.

Case No. A15A2226

The record as to S. C. S. shows that the mother was never married to S. C. S.’s

father and that she had sole physical custody of the child at all relevant times.1 In

August or September of 2014, when S. C. S. was approximately 18 to 19 months old,

the mother and S. C. S. began living with the mother’s boyfriend. Shortly thereafter,

in October 2014, the mother and her grandmother got into a physical altercation after

the grandmother questioned why there was significant bruising on S. C. S.’s buttocks.

1
Although he was a party to the dependency proceedings in the juvenile court,
S. C. S.’s father is not a party to this appeal.

2
The altercation resulted in the filing of a police report, and the police, in turn,

reported S. C. S’s injuries to DFACS.

When interviewed by DFACS, the mother stated that she was the individual in

charge of disciplining S. C. S. and admitted to spanking the child on his bare bottom.

The mother insisted, however, that she had only “popped” the child once with her

bare hand. As a result of the incident, DFACS put a safety plan in place, pursuant to

which the mother agreed not to use any form of corporal punishment on the child.

DFACS also provided the mother with parenting resources, including a referral for

training on appropriate parenting and discipline. The Department closed the October

2014 case as to S. C. S. on December 3, 2014.

Two days later, in the early morning hours of December 5, 2014, S. C. S. was

admitted to a local hospital with life threatening injuries, including a fractured skull,

bleeding on the brain causing a loss of consciousness, and compression fractures of

several thoracic vertebrae. In addition to these injuries, S. C. S. also had a recent

bruise on the left side of his forehead, near his hairline; a number of “older” bruises

across his upper forehead; bruises on his nose; scratches on both ears; bruises on his

chest; a significant bruise in the middle of his lower back, near his hips; a bruise on

his right shin; a circular bruise around his left ankle; and bruising running down his

3
left leg, across the top of the left foot, and across the bottom of that foot. Because

none of S. C. S.’s injuries appeared to be accidental and because the mother could not

adequately explain the cause of those injuries, the hospital referred the case to law

enforcement authorities and DFACS.

On December 8, 2014, DFACS applied for and received an order removing S.

C. S. from his mother’s custody. The juvenile court thereafter held a preliminary

protective hearing,2 after which it entered an order granting DFACS temporary

custody of the child pending a hearing on the State’s dependency petition, which was

filed on December 11. The juvenile court also appointed a guardian ad litem, a special

advocate, and an attorney to represent S. C. S. On January 13 and 27, 2015, the

juvenile court held the dependency hearing, at which the State presented evidence

relating to both the October and the December 2014 DFACS cases involving S. C. S.

As to the injuries sustained by S. C. S. in December, the mother testified that

late on the evening of December 4 she left the apartment she shared with her

2
Pursuant to OCGA § 15-11-145 (a), “[i]f an alleged dependent child is
removed from his or her home and is not returned home, the preliminary protective
hearing shall be held promptly and not later than 72 hours after such child is placed
in foster care; provided, however, that if the 72 hour time frame expires on a weekend
or legal holiday, the hearing shall be held on the next day which is not a weekend or
legal holiday.”

4
boyfriend and S. C. S. and went to her job on the overnight shift at a local

convenience store. At that time S. C. S., who the mother left in the care of her

boyfriend, was not injured and was asleep in his toddler bed. At approximately 2:30

a.m. on December 5, the mother received a call from the boyfriend, who told her that

S. C. S. had awakened crying and that the child was having difficulty breathing. The

mother called 911 and then proceeded to her apartment, where she met paramedics

and rode with S. C. S. to the hospital. When asked about the origins of her child’s

injuries, the mother insisted that the boyfriend had not harmed the child. The mother

then explained that starting at the age of approximately one year, S. C. S. had begun

experiencing “night terrors,” during which he would “flail violently” and “thrash[ ]

around constantly.” The mother therefore believed that either on the night in question

or during one night earlier in the week, the child had experienced such a night terror

and that he had hit his head on the rail of his toddler bed, thereby fracturing his skull.

Additionally, the mother testified that two days before S. C. S. went to the hospital,

he had struck his head on the bottom of the kitchen table when he crawled underneath

the table to retrieve a ball. When questioned about the bruises on S. C. S.’s forehead,

the mother stated that “he always has a bruise on his forehead . . . because he always

bumps into everything.” The mother also claimed that the severe bruise in the center

5
of the child’s lower back resulted from S. C. S. falling in the tub directly onto his

buttocks and that the bruises on his feet (including the top of his foot and the circular

bruise around his left ankle) occurred when S. C. S. was playing outside in his bare

feet during the first week of December. The mother admitted that she could not

explain the bruises on her son’s neck and chest at the time he was admitted to the

hospital, because to her knowledge no such bruises existed when she left for work the

night before.

The boyfriend testified that on the night S. C. S. went to the hospital, he

noticed no unusual bruises on the child before the toddler went to bed at

approximately 9:00 p.m. After the mother left for work, the boyfriend played video

games and heard S. C. S. doing some “whining that he does when he’s having trouble

sleeping,” but the boyfriend did not check on the child, and S. C. S. eventually went

to sleep. Several hours later, S. C. S. woke up with a loud cry and when the boyfriend

went to check on the toddler, he discovered that S. C. S. was having extreme

difficulty breathing. The boyfriend denied hurting the child, but acknowledged that

he and the mother were the only two people who had any contact with S. C. S. on the

day in question. When questioned, the boyfriend stated that he was aware that the

child experienced night terrors, but that he did not hear S. C. S. thrashing in his

6
toddler bed on the night in question. The boyfriend also admitted that he could offer

no explanation as to how S. C. S. might have sustained his injuries.

Brett Morrison was the detective with the Murray County Sheriff’s Office who

investigated the December incident, and he testified that he had received special

training in the investigation of child abuse cases. In Morrison’s opinion, the injuries

S. C. S. suffered in December 2014 were not accidental. Morrison stated that the

occipital skull fracture and retinal hemorrhaging that S. C. S. experienced would have

resulted from “an extremely violent impact to or shaking of the child,” explaining that

it “takes quite a bit of force to cause such injuries.” Similarly, the compression

fractures to the vertebrae would also require significant force to inflict, and Morrison

believed those fractures most likely resulted from the child being physically

“slammed down” or falling from a great height. Additionally, Morrison stated that the

bruise on S. C. S.’s lower back was also consistent with the child having been

slammed down onto his bottom. With respect to S. C. S.’s other bruises, Morrison

observed that the bruises on the neck, ankle, and foot were not typical toddler bruises.

Finally, Morrison testified that based on his investigation into S. C. S.’s injuries, he

did not believe that S. C. S. would be safe if he was returned to his mother’s custody.

7
 The State also presented the deposition testimony of Annamaria Church, a

pediatrician who consulted on S. C. S.’s case at the hospital. According to Dr.

Church, who was qualified as an expert in child abuse cases, “none of the injuries or

traumas” suffered by S. C. S. were consistent with the mother’s explanations for those

injuries. Specifically, Dr. Church stated that neither S. C. S.’s flailing or thrashing

around in his bed as a result of night terrors nor his hitting his head on the underside

of the kitchen table would explain the skull fracture to the back of the child’s head.

The doctor described that fracture as “pretty extensive” and requiring “a good amount

of force” to inflict, explaining that the skull is “hard[ ] to break.” The doctor therefore

believed that the skull fracture was an “impact injury,” meaning it occurred when S.

C. S. was “slammed” into or against something. Additionally, according to Dr.

Church, it appeared from the image studies of the child’s head that the skull fracture

in question was not the first significant injury to S. C. S.’s head, as those studies

showed evidence of an earlier injury in that same area of the brain.

Dr. Church further testified that the compression fractures of S. C. S.’s

vertebrae were most likely the result of the child being sat down “forcefully . . .

smashing him down or onto something hard,” and noted that such fractures “usually

take[ ] a heck of a lot of force” to inflict. The doctor also stated that the bruise on S.

8
C. S.’s back was not consistent with him falling straight down onto his buttocks in the

bathtub, as a bruise resulting from such an incident would have appeared lower down

on the back. As to the bruises on S. C. S.’s forehead, Dr. Church testified that there

were too many of them for the bruises to be considered accidental. Additionally, the

doctor testified that she could not “fathom an accidental means” of a child receiving

the bruises that appeared on S. C. S.’s feet and ankle. According to Dr. Church, it

appeared that the many bruises over the different parts of S. C. S.’s body were in

various stages of healing, and this fact led her to conclude that it was more likely than

not that S. C. S.’s injuries had been inflicted over a period of time. Finally, Dr.

Church opined that the life-threatening injuries that S. C. S. received in December

2014 could have occurred in only one of two ways. The first possibility was that the

boyfriend inflicted those injuries after the mother left for work. Alternatively, either

the mother or the boyfriend or both could have injured the child earlier in the day or

evening, before the mother went to work, with the child being left unconscious

(instead of asleep). Under those circumstances, Dr. Church believed that the report

that the child woke up crying showed that the child had regained consciousness at

some point. When asked if in her opinion, S. C. S. would be safe if he were returned

to his mother’s custody, Dr. Church replied “absolutely not.”

9
 With respect to the October 2014 DFACS case regarding S. C. S., the State

introduced photos of the bruises that appeared on S. C. S.’s buttocks at that time. The

photos showed five distinct bruises on the child’s buttocks, as well as a number of

other bruises that were on his buttocks and going up his back. When questioned about

the incident, the mother continued to maintain that, despite the number of bruises

appearing on S. C. S., she had only given the child one spank with her open hand. The

mother also explained her decision to spank the toddler by saying that he had

behavior problems, he had a very bad temper, and that on the day in question he had

spit at her and attempted to bite her.

After reviewing the October photos of S. C. S.’s buttocks, Dr. Church testified

that in her opinion the bruises were “definitely not” consistent with the child having

received one swat with an open hand on his bare bottom. Instead, it appeared to her

that some of the bruises were inflicted by a hand on several occasions – i.e., the

bruises did not result from a single spanking. Additionally, the physician believed

that some of the bruises looked as though they resulted from a strap or some other

implement.

The State also introduced evidence showing that S. C. S. first began showing

visible signs of injury after the mother’s boyfriend moved into the residence in

10
approximately August 2014. Between March and September 2014, S. C. S. was

enrolled in a local daycare center. The director of that center testified that beginning

in August 2014, a number of bruises began appearing on S. C. S. During that month,

daycare workers documented bruises on the child’s buttocks, his leg, one of his

testicles, and behind one of his ears. When asked about the bruises found on the

child’s buttocks on August 19, the mother responded that the 18-month-old had

received a spanking for refusing to listen to her, and she explained an injury to the

child’s mouth by saying that he “busted his lip” playing with a toy. When the facility

director subsequently contacted the mother to discuss some additional bruises found

on S. C. S. the next week, the mother became angry and insisted that the additional

bruising occurred when the toddler fell out of bed. On August 27, the mother brought

S. C. S. to daycare with a bruise on his forehead and reported to the daycare workers

that the child had bumped his head climbing out of his car seat that morning. The

record from S. C. S.’s pediatrician, however, showed that the mother had taken the

child to the doctor on August 25 for treatment of a bruise on the center of his

forehead and bruises on his right ear. The mother told the pediatrician that S. C. S.

had sustained those injuries at daycare.

11
 Records from the pediatrician’s office also showed that the mother took S. C.

S. to the doctor in November 2014 because of more bruising, and on this visit the

mother reported for the first time that S. C. S. had behavioral issues, implying that

those issues were the cause of his bruises. Notably, however, the daycare director

stated that she considered S. C. S. a “normal” two year old with no behavioral

problems. Additionally, the DFACS supervisor who oversaw S. C. S.’s case testified

that since the child entered foster care upon his release from the hospital in December

2014, the supervisor had received no reports of S. C. S. having any night terrors,

behavioral issues, or bruising.

Finally, the State presented the testimony of the boyfriend’s ex-wife, who

testified as to his violent tendencies. Specifically, the ex-wife testified that while the

couple was married, the boyfriend abused her verbally and that after the couple

separated, he also became physically violent towards her. The ex-wife explained that

she eventually obtained a restraining order against her former husband after he broke

into her home and physically assaulted her, set a fire in her yard to burn her personal

belongings, threatened her, and generally began behaving erratically. The ex-wife

stated that she was afraid of her former husband because he was prone to anger and

“goes into a rage” when he “doesn’t get what he wants.”

12
 The mother acknowledged that the child began suffering significant bruising

at or around the time the boyfriend moved into the home. And she further

acknowledged that she and the boyfriend were the only two people to have contact

with S. C. S. on the day in question. Additionally, the mother maintained that when

she put S. C. S. to bed on December 4 the child had no unusual bruising or other

injuries. The mother also admitted that she was aware of the opinions of medical and

law enforcement authorities that the injuries sustained by S. C. S. were deliberately

inflicted on him. Despite all of this evidence, however, the mother testified as to her

alleged belief that all of the child’s injuries were accidental because S. C. S. is

“accident prone.” Additionally, even given the objective facts and after hearing the

testimony of her boyfriend’s ex-wife as to the man’s violent tendencies, the mother

testified that if custody were returned to her she would have no concerns about

allowing the boyfriend to be around S. C. S., as she refused to believe that the

boyfriend would injure her child.

Based on the foregoing evidence, the juvenile court entered an order finding

that S. C. S. was a victim of physical abuse and was therefore a dependent child. The

court further found that returning S. C. S. to his mother would be contrary to the

child’s welfare and it therefore awarded custody of the child to DFACS. The mother

13
subsequently filed a petition seeking to modify or vacate the dependency order. At

the hearing on that petition, the mother presented the testimony of John G. Galaznik,

M. D., a pediatrician who had developed a speciality in determining the cause of

injuries to infants and small children. Dr. Galaznik had reviewed S. C. S.’s medical

records and the available imaging studies of the child’s injuries. The physician,

however, had not interviewed either the mother, S. C. S.’s treating physicians, or any

employee of DFACS.

According to Dr. Galaznik, a skull fracture such as that suffered by S. C. S.

could be consistent with a toddler falling and hitting his head in the bathtub3 and it

could also be consistent with a toddler hitting his head on a table. Dr. Galaznik

further stated, however, that it was not his job to say whether S. C. S’s injuries

resulted from abuse. He explained that he was hired based on the assumption that the

medical history and explanation of the child’s injury given by the parent was true, and

that his job was to examine the evidence and see if it could be interpreted to support

the parent’s version of events. Additionally, Dr. Galaznik stated that it was not his job

3
Notably, when explaining the bruise in the middle of S. C. S.’s back, the
mother stated that while in the bathtub, the child had slipped and fallen directly onto
his bottom. There was no evidence that S. C. S. had ever hit his head by falling in the
bathtub.

14
in this case to form an opinion as to when S. C. S. suffered the injuries in question or

whether those injuries were inflicted deliberately. Thus, although the mother claimed

that the child had hit his head two or three days before he was taken to the hospital,

Dr. Galaznik could not say definitively that S. C. S.’s most serious injuries were that

old, and he acknowledged the possibility that those injuries were inflicted on the same

night S. C. S. went to the hospital. Nor could Dr. Galaznik rule out physical abuse as

a cause of S. C. S.’s injuries. The physician acknowledged that he had no way of

knowing whether the mother’s explanations as to the cause of S. C. S.’s injuries were

true, and he stated that his role in this case was not “to says whether this child was

abused or not abused.”

Dr. Galaznik further admitted that he would find “suspicious” any assertion

that a skull fracture such as that suffered by S. C. S. resulted from a bathtub fall.

Moreover, based on his experience, Dr. Galaznik would not expect compression

fractures of the vertebrae to result from a child’s thrashing around in bed and/or

striking the sides of the bed. Finally, Dr. Galaznik acknowledged that many of the

bruises on S. C. S., including the circular bruise on the child’s ankle, were not in

locations where one would expect a child to incur an accidental bruise.

15
 Following the hearing at which Dr. Galaznik testified, the juvenile court

entered an order denying the mother’s petition to vacate or modify the dependency

order. The mother then filed this appeal.

Under the most recent version of Georgia’s Juvenile Code, the juvenile court

may place a minor child in the protective custody of the Department where the State

shows, by clear and convincing evidence, that the child is a “dependent child.”4 See

4
The current juvenile code became effective January 1, 2014, and applies to
all “juvenile proceedings commenced on or after that date . . . .” Ga. L. 2013, p. 294,
§ 5-1. The former juvenile code authorized a juvenile court to award custody to the
Department of any minor child shown to be “deprived.” A “deprived child” was
defined as a child who was “without proper parental care or control, subsistence,
education as required by law, or other care or control necessary for the child’s
physical, mental, or emotional health or morals; [h]a[d] been placed for care or
adoption in violation of law; [h]a[d] been abandoned by his or her parents or other
legal custodian; or [was] without a parent, guardian or custodian.” See former OCGA
§ 15-11-2 (8). The current juvenile code uses the word “dependent” in lieu of
“deprived,” and it defines a dependent child as one who “[h]as been abused or
neglected and is in need of the protection of the court; . . . [h]as been placed for care
or adoption in violation of law; or . . . [i]s without his or her parent, guardian, or legal
custodian.” OCGA § 15-11-2 (22). The new code defines “neglect” as “[t]he failure
to provide proper parental care or control, subsistence, education as required by law,
or other care or control necessary for a child’s physical, mental, or emotional health
or morals; . . . [t]he failure to provide a child with adequate supervision necessary for
such child’s well-being; or . . . [t]he abandonment of a child by his or her parent,
guardian, or legal custodian.” OCGA § 15-11-2 (48). Given the similarities between
the definition of a “deprived child” and that of a “dependent child,” we find that our
previous decisions addressing the deprivation of a child are relevant to appeals
involving the dependency of a child.

16
OCGA § § 15-11-150 (petition alleging dependency), 15-11-152 (contents of petition

alleging dependency), 15-11-180 (burden of proof). Thus, on appeal from an order

finding a child to be a dependent child, we review the juvenile court’s finding of

dependency in the light most favorable to the lower court’s judgment to determine

whether any rational trier of fact could have found by clear and convincing evidence

that the child is dependent. In the Interest of A. B., 289 Ga. App. 655 (1) (658 SE2d

205) (2008). In making this determination we neither weigh the evidence nor judge

the credibility of the witnesses, but instead defer to the factual findings made by the

juvenile court, bearing in mind that “[t]he juvenile court’s primary responsibility is

to consider and protect the welfare of a child whose well-being is threatened.” Id. at

656 (1) (citation, punctuation and footnote omitted). See also In the Interest of L. F.,

275 Ga. App. 247 (620 SE2d 476) (2005).

The State alleged, and the juvenile court found, that S. C. S. was a dependent

child because he was a victim of abuse. The code defines abuse, in relevant part, as

“[a]ny nonaccidental physical injury or physical injury which is inconsistent with the

explanation given for it suffered by a child as the result of the acts or omissions of a

person responsible for the care of a child.” OCGA § 15-11-2 (2) (A). On appeal, the

17
mother challenges the juvenile court’s finding of dependency on two grounds, and

she also challenges the juvenile court’s removal of S. C. S. from her custody.

1. The mother contends that the factual findings made by the juvenile court in

support of its finding of dependency “misstated or mischaracterized [the] evidence,”

and that this fact, standing alone, requires us to vacate the dependency order and

remand the case for further consideration. See In the Interest of S. J., 270 Ga. App.

598, 610 (1) (c) (607 SE2d 225) (2004) (where a dependency order relies primarily

on “misstatements and mischaracterizations of the evidence and unsubstantiated

hearsay,” the appellate court must, “[a]t a minimum . . . vacate such an order and

remand the case for reconsideration”) (footnote omitted). We find no merit in this

assertion.

(a) The mother identifies three separate factual findings of the juvenile court

that she contends were erroneous because they mischaracterized the evidence.

Specifically, the mother contends that the trial court erred in finding that S. C. S. had

at least 15 bruises on his buttocks in October 2014; that the bruise present on S. C.

S.’s testicles in August 2014 was caused by anything other than an allergic reaction

to disposable diapers; and that the mother and the boyfriend remained in a

relationship. The evidence, however, supports each of these findings.

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 (i) As to the mother’s claims of errors regarding S. C. S.’s injuries, the

photographs taken in October 2014 of the bruises on S. C. S.’s buttocks and back

show that the bruises present at that time were numerous and there could, in fact, be

more than 15 bruises. Additionally, the daycare supervisor testified that in August

2014 S. C. S. suffered an allergic reaction to his disposable diapers that resulted in

what she described as something akin to diaper rash. The mother informed the

daycare of the allergic reaction and the fact that it has caused S. C. S.’s genitals to

become “red and swollen” on August 25. The following day, when applying

prescription ointment to S. C. S.’s genitals, daycare workers saw a bruise on one of

the child’s testicles that had not been there the previous day. At the hearing, the

mother offered no evidence – either in the form of S. C. S.’s pediatric records or

testimony from her expert witness – that a bruised testicle could result from an

allergic reaction.

(ii) The evidence also supported the juvenile court’s finding that the mother

and the boyfriend remained in an “ongoing relationship.” Although both the mother

and the boyfriend testified that they no longer lived together, the record showed that

they had daily contact either in person or via cell phone; that the boyfriend used the

mother’s car to get to work four to five days a week; that at times the mother drove

19
the boyfriend to and from work while on other days she remained the entire day at the

apartment they used to share (and where the boyfriend still resided) while the

boyfriend drove himself to and from work.

(b) The mother also points to four specific instances of allegedly erroneous

misstatements by the juvenile court which she claims warrant reversing or vacating

the finding of dependency. As the mother acknowledges in her brief, however, “[a]

misstatement in a finding of fact [contained in a dependency order] is not reversible

error unless the appellant can show that the misstatement was harmful.” In the

Interest of A. W., 264 Ga. App. 705, 708 (3) (592 SE2d 177) (2003) (citation and

footnote omitted). And here, the mother has failed to show how any of the juvenile

court’s erroneous factual findings harmed her.

(i) The mother contends that the juvenile court erred in identifying Dr. Church

as one of S. C. S.’s treating physicians, because the record showed that she was

simply a consulting physician, brought in “to determine if the injuries [to S. C. S.]

were caused by abuse . . . or if they matched the account given by the parents.”

Whether one characterizes Dr. Church as a treating or a consulting physician,

however, is not relevant to her testimony in this case or to the question of whether

that testimony supported the conclusion that S. C. S. was abused. Here, the record

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shows that Dr. Church was qualified as an expert in child abuse cases and in her

expert opinion, the injuries S. C. S. suffered were not accidental but instead were

inflicted intentionally. In light of this evidence, the mother cannot show she suffered

any harm as a result of the juvenile court identifying Dr. Church as one of S. C. S.’s

treating physicians, rather than as an expert consultant.

(ii) The mother also asserts that the juvenile court mistakenly found that the

October 2014 DFACS case regarding S. C. S. was still ongoing at the time of the

December incident. We agree that the record shows that the October case was closed

on December 3, 2014, and the second DFACS case was not opened until December

5. The mother fails to explain, however, why the juvenile court’s confusion as to the

exact date on which DFACS closed its first case should require the juvenile court to

reconsider its finding of dependency, especially given that the injuries S. C. S.

suffered in December, standing alone, support the juvenile court’s finding that S. C.

S. was a dependent child.

(iii) The mother further argues that the juvenile court erred in finding that the

mother and boyfriend offered inconsistent testimony “regarding the events leading

up to” S. C. S. being taken to the hospital. Even assuming that there were no

inconsistencies in their testimony, however, the mother cannot show any harm

21
resulting from this error. Indeed, it is the consistencies in the testimony offered by

both the mother and the boyfriend that support the finding that S. C. S. was a victim

of abuse at the hands of these individuals. Specifically, both the mother and her

boyfriend testified that they were the only two people to have any contact with S. C.

S. on the day he was hospitalized and that neither had any knowledge of deliberate

injuries being inflicted on the child.

(iv) Finally, the mother argues that the trial court erred in finding that “the

mother testified that [S. C. S.] had [no] bruises anywhere on his body” when she left

for work on the evening of December 4. The mother points out that during her

testimony she acknowledged and offered explanations for the bruises on S. C. S.’s

forehead, feet, and back. Again, however, the mother fails to show how the juvenile

court’s misstatement harmed her. It appears that in this regard, the juvenile court was

focused on the mother’s testimony that S. C. S. was not suffering from any significant

injuries at the time she left for work – i.e, that the mother could offer no plausible

explanation for the life-threatening injuries suffered by her child.

2. The mother also argues that the actual evidence of record, when properly

characterized, does not support the finding that S. C. S. is a dependent child. In

support of this argument, the mother relies on the fact that her expert witness, Dr.

22
Galzinak, testified that S. C. S’s most serious injuries were consistent with the

explanations offered by the mother as to the potential accidental causes of those

injuries. This argument, however, ignores the testimony of Dr. Church, the sheriff’s

office investigator, and the DFACS employees, all of which supported the conclusion

that S. C. S’s injuries were deliberately inflicted and not accidental. To the extent that

this evidence was conflicting, we emphasize that as an appellate court, we do not

decide what weight should be afforded to specific evidence. See In the Interest of W.

W., 308 Ga. App. 407 (707 SE2d 611) (2011). Rather we must affirm the trial court

if the record shows that “any rational trier of fact could have found by clear and

convincing evidence that the child was [dependent].” Id. (citation and punctuation

omitted).

Here, the juvenile court could find that clear and convincing evidence

supported the conclusion that S. C. S. suffered significant physical abuse and that the

only persons with the opportunity to harm S. C. S. were the mother and her boyfriend.

Moreover, despite the mother’s testimony as to the other potential causes of S. C. S.’s

life threatening injuries, the child had not suffered night terrors, behavioral problems,

or significant bruising since being removed from his mother’s custody. Given this

23
evidence, and given the juvenile code’s definition of a dependent child,5 the evidence

supports the juvenile court’s finding that S. C. S. was a dependent child. See In the

Interest of K. B., 302 Ga. App. 50, 53 (1) (690 SE2d 627) (2010) (evidence that child

suffered physical abuse while in her mother’s custody supported juvenile court’s

finding that child was deprived); In the Interest of A. R., 287 Ga. App. 334, 336 (651

SE2d 467) (2007) (child’s “multiple unexplained fractures while in the custody of the

mother and father [supported] the juvenile court’s finding that [the child] was

deprived”); In the Interest of T. J., 273 Ga. App. 547, 549-550 (615 SE2d 613) (2005)

(fact that child was brought to hospital with subdural hematoma and multiple

fractures supported a finding of deprivation, even though the cause of the injuries

remained unknown).6

5
As noted above, a dependent child includes one who suffers “[a]ny
nonaccidental physical injury or physical injury which is inconsistent with the
explanation given for it . . . as the result of the acts or omissions of a person
responsible for the care of a child.” OCGA § 15-11-2 (2) (A).
6
These cases also show that to the extent the mother is arguing that the State
failed to prove S. C. S.’s dependency because it failed to show that she was the person
who inflicted the life threatening injuries on her child, such an argument is without
merit. See In the Interest of K. B., 302 Ga. App. at 53 (1); In the Interest of A. R., 287
Ga. App. at 336; In the the Interest of T. J., 273 Ga. App. at 549-550. See also In the
Interest of C. B., 308 Ga. App. 158, 162 (3) (706 SE2d 752) (2011) (a parent’s
decision to expose her child to a dangerous person and subsequent failure to protect
the child from that person will support a finding that the child is deprived); In the
Interest of B. H., 295 Ga. App. 297, 298 (2) (671 SE2d 303) (2008) (“[i]t is well
established that a juvenile court is authorized to find a [child is deprived] based on
a parent’s failure to protect his or her child from injury”) (footnote omitted).

24
 3. As a general rule, a juvenile court may order a dependent child removed

from a parent’s custody if the evidence shows that the circumstances supporting the

finding of dependency “resulted from unfitness on the part of the parent.” In the

Interest of C. B., 308 Ga. App. 158, 160 (3) (706 SE2d 752) (2011) (citation and

punctuation omitted). Specifically, the State must show that the parent engaged in

“either intentional or unintentional misconduct resulting in the abuse or neglect of the

child,” or that the parent is physically or mentally incapable of caring for the child.

Id. (citation and punctuation omitted). Relying on this law, the mother argues that

even if the evidence supports the juvenile court’s finding that S. C. S. is a dependent

child, the juvenile court nevertheless erred in removing the child from the mother’s

custody because the State failed to show that she was an unfit parent. We disagree.

As the evidence set forth above demonstrates, the abuse of S. C. S. can be

attributed directly to the intentional misconduct of the mother. Specifically, the

evidence shows that either the mother herself inflicted the life threatening injuries on

S. C. S. or she allowed the boyfriend the opportunity to inflict those injuries and

thereafter worked to shield the boyfriend from prosecution. And the mother’s

testimony made clear that her priority was protecting her boyfriend, rather than her

child. Accordingly, the juvenile court did not err in removing S. C. S. from his

25
mother’s custody. See In the Interest of C. B., 308 Ga. App. at 162 (3) (affirming

father’s loss of custody where evidence showed that mother posed a danger to the

child and the father nevertheless allowed the mother to care for the child, in violation

of the safety plan put in place by the Department); In the Interest of S. Y., 284 Ga.

App. 218, 219 (644 SE2d 145) (2007) (where evidence showed that one of mother’s

children had been molested and another had suffered both an unexplained head injury

and unexplained sexual abuse, that evidence supported juvenile court’s decision to

remove all six of the mother’s children from her custody).

Case Number A15A2227

At the time S. C. S. was taken into DFACS custody in December 2014, the

mother was pregnant with the boyfriend’s child. At the hearing on the dependency

petition as to S. C. S., the mother testified that she had no concerns about the

boyfriend’s ability to interact with children and that she would allow the boyfriend

to help care for their child. Following the birth of that child, A. W., on March 16,

2015, DFACS applied for and received an order placing A. W. in its protective

custody pending the filing and adjudication of a dependency petition as to the infant.7

7
Both S. C. S. and A. W. were placed with their maternal grandmother and her
husband.

26
In its removal order, the juvenile court noted that S. C. S.’s injuries were caused by

either the mother or A. W.’s father (the mother’s boyfriend) or both and that therefore

A. W. would not be safe with either of her parents.

The State subsequently filed a dependency petition as to A. W. and at the

hearing thereon, the parties agreed to allow the juvenile court to decide the case based

on the record in S. C. S.’s case. The trial court thereafter entered its order finding A.

W. to be a dependent child and awarding custody of her to the Department. In Case

No. A15A2227, the mother appeals from that order.8

4. The mother contends that the juvenile court erred in finding A. W. to be a

dependent child because there is no evidence that she had suffered any abuse or

neglect. We disagree. Georgia law is clear that

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

8
The father of A. W. is not a party to this appeal.

27
In the Interest of R. B., 322 Ga. App. 421, 424 (745 SE2d 677) (2013) (punctuation

and footnote omitted) (holding that finding of infant’s deprivation could be based on

the evidence leading to the mother’s loss of custody of an older child, given that no

circumstances had changed between the removal of the older child from the mother’s

custody and the birth of the infant). See also In the Interest of A. R., 287 Ga. App. at

336 (holding that unexplained injuries suffered by one child supported the juvenile

court’s order finding that both of the mother’s children were deprived, noting that “[a]

juvenile court may consider a mother’s inability to properly care for one child as

evidence that she will not be able to care for her other children”) (citation omitted).

Thus, a juvenile court may find a newborn child to be dependent where that

child’s parent has recently lost custody of an older child as the result of physical

abuse suffered by the older child while in the care of that parent. See In the Interest

of K. C. H., 257 Ga. App. 529, 530 (571 SE2d 515) (2002). In K. C. H., the mother

had previously lost custody of her four-and six-year-old children based on evidence

showing that her boyfriend had molested the six-year-old. Id. At the time she lost

custody of her children, the mother was pregnant with K. C. H., who was the

boyfriend’s child. The mother subsequently married the boyfriend, and after she gave

birth to K. C. H., the State filed a dependency petition seeking custody of the

28
newborn. The juvenile court granted the State’s petition and placed the child in

DFACS custody. Id. at 531. The mother appealed, arguing that under the

circumstances, the State could not prove that K. C. H. was deprived, as she had never

suffered any harm while in the custody of her parents. Id. We rejected that argument,

noting that despite the evidence that her then-boyfriend (now husband) had molested

her oldest child, the mother denied that such molestation had occurred, married the

man, and continued to live with him. We explained that the deprivation order as to

the two older children

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

Id. at 532 (2).

In this case, the evidence showed that the mother herself posed a threat to A.

W., given that it would support the conclusion that the mother herself had physically

abused S. C. S. or at least participated in that abuse. Alternatively, the record shows

that the mother allowed her boyfriend to abuse S. C. S. With respect to this second

possibility, the record further shows that, despite the evidence to the contrary, the

29
mother denied that the boyfriend had any responsibility for S. C. S.’s injuries; the

mother continued to have a relationship with the boyfriend; the mother had no

concerns about allowing the boyfriend around her children; and the mother would

allow the boyfriend to have unsupervised contact with A. W. Under these

circumstances, “the mother’s own choices . . . with respect to [A. W.] show by clear

and convincing evidence that [A. W.] was [dependent]” based on the mother’s

unwillingness to protect the child. Id.9

9
The mother relies on our decision in In the Interest of A. B., 263 Ga. App.
697, 699 (1) (589 SE2d 264) (2003), to argue that the juvenile court could not rely
on the abuse suffered by S. C. S. to find that A. W is a dependent child. This reliance
is misplaced. In A. B., the juvenile court granted the State custody of a a newborn
based on the mother’s loss of custody of her older child. We vacated the order of
deprivation, finding that the appellate record did not support the deprivation finding.
We noted that the record contained “a mere 15 pages, [was] sketchy at best and [was]
replete with hearsay and unsubstantiated statements.” 263 Ga. App. at 699 (1).
Additionally, the sole witness to testify offered no testimony as to A. B. and stated
that she was unsure whether the mother had been aware of the abuse suffered by the
older child at the hands of the mother’s boyfriend. Id. We therefore concluded that
“[a]lthough it may well be that A. B. is a ‘deprived child’ and that the deprivation is
ongoing due to maternal inability to properly care for and protect him, we cannot say
that the record before us contains clear and convincing evidence of the statutory
elements.” Id. (citation omitted). Unlike the record in A. B., however, the record in
this case does contain clear and convincing evidence to support the conclusion that
if she were placed in her mother’s custody, A. W. would be in significant danger of
physical abuse.

30
 5. The mother also contends that the juvenile court erred in removing A. W.

from her custody as the record failed to show that she was an unfit parent. For the

reasons set forth in Division 3, supra, we find this argument to be without merit.

6. OCGA § 15-11-202 provides that at a hearing on a dependency petition, the

State bears the burden of “demonstrating that . . . [DFACS] has made reasonable

efforts to eliminate the need for removal of an alleged dependent child from his or her

home.” OCGA § 15-11-202 (e) (2) (A). Additionally, in any temporary placement

order entered as to a dependent child, the juvenile court must make findings of fact

as to whether that child’s “continuation in or return to his or her home would be

contrary to his or her welfare” and whether “reasonable efforts have been made to

prevent or eliminate the need for placement of such child, unless the court has

determined that such efforts are not required.” OCGA § 15-11-202 (j).

Here, the mother appeals from a temporary placement order in which the

juvenile court found that DFACS “made reasonable efforts to prevent or eliminate the

need for removal [of A. W.] by attempting to work with the mother in [S. C. S.’s]

case,” but that those efforts failed as evidenced by the fact that S. C. S. suffered life-

threatening injuries while in his mother’s custody. The court further found that in

light of the record as to S. C. S., A. W. “would be at risk of harm if placed in the

31
custody of . . . her mother,” and that A. W.’s placement with the mother would be

“contrary to the welfare of the child.” The mother claims that these findings are

insufficient to support the removal of A. W. from the mother’s custody as they fail to

show that the Department made any effort – reasonable or otherwise – to eliminate

the need to remove A. W. from the mother’s home. This argument provides no basis

for reversal.

Even where the record fails to show that the Department made reasonable

efforts to prevent removal of the child, that fact “shall not preclude the entry of an

order” placing a dependent child in the custody of DFACS “when the court finds that

[such] placement is necessary for the protection of such child.” OCGA § 15-11-202

(g). Here, the juvenile court specifically found that placement of A. W. in the

Department’s custody was necessary for A. W.’s protection, as both of her parents

posed a danger to the infant. Thus, even assuming that DFACS made no reasonable

effort to prevent A. W.’s removal from her mother’s custody, the juvenile court’s

factual findings support the award of custody to the Department.

For the reasons set forth above, we affirm the order of the juvenile court

entered in Case No. A15A2226, finding S. C. S. to be a dependent child and granting

custody of that child to the Department. We also affirm the order of the juvenile court

32
entered in Case No. A15A2227, finding A. W. to be a dependent child and granting

custody of that child to the Department.

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

33