Williams v. state

Williams v. State
597 S.E.2d 621 (2004)
266 Ga.App. 578
WILLIAMS v. The STATE.
No. A03A2193.
Court of Appeals of Georgia.
March 25, 2004.
Sometime after the children had been placed with foster parents, the foster mother noticed a
discharge in the victim's panties. Although at first the victim was reluctant to talk to her foster mother
about the abuse, after some urging by the foster mother she told the foster mother that her father
had been abusing her and her younger brother.[2] The foster mother reported this to DFACS.
When the children were placed in foster care, a different caseworker took over, but Morrison became
involved again when the abuse allegations surfaced. She interviewed the victim, who repeated her
allegations regarding her father's sexual abuse. She also interviewed the younger brother twice. In
the first interview, the brother denied any instance of abuse by his father. In the second interview,
the brother admitted that his father had touched his private parts once, under his clothing, that on
that occasion he touched his father's private parts as well, that at his father's request he had placed
his father's penis in his mouth, and that his sister had witnessed this incident.
At trial, the child's treating psychologist was qualified as an expert, and she testified that the
victim was referred to her because the victim was displaying "inappropriate sexual behavior."
She testified that the victim told her that her father began touching her when she was two or
three years old. Using anatomical drawings, the victim indicated that he had both touched her
and licked her, and that he had made her lick him. The psychologist also administered
various psychological tests, and she testified that the results of those tests "were consistent
with [the victim's] statements that she had been sexually abused." She described the victim's
demeanor as "open and forthcoming" but also "emotionally detached," as if she had set
aside the abuse experience but had "not really dealt with it."
The Supreme Court of Georgia has held that Georgia's "rape-shield law," OCGA § 24-2-3, does not
prohibit testimony of previous false allegations by the victim. Before such evidence can be admitted,
however, the trial court must make a threshold determination outside the presence of the jury that a
reasonable probability of falsity exists. In this context, a reasonable probability is a probability
sufficient to undermine confidence in the outcome.
(Citations and punctuation omitted.) Banks v. State, 250 Ga.App. 728-729(1), 552 S.E.2d 903
(2001). "Defendants have the burden of coming forward with evidence at the hearing to establish a
reasonable probability that the victim had made a prior false accusation of sexual misconduct."
(Citations and punctuation omitted.) Kelley v. State, 233 Ga.App. 244, 251, 503 S.E.2d 881 (1998).
The defense advised the trial court before trial of its desire to present evidence of a prior false
allegation, and the trial court conducted a hearing to determine whether these allegations had a
"reasonable probability of falsity." The evidence presented showed that when DFACS investigator
Morrison interviewed the victim, in addition to confirming that her father had abused her repeatedly,
the victim also remembered that once, while visiting her aunt, her half-brother, David Haney, had
touched her private area over her clothes while they were playing. The victim also told a sheriff's

investigator about that touching, and the victim herself testified to the incident. Haney testified and
denied the touching. In fact, he denied that *625 he and the victim had ever been alone together.
The trial court ruled that the defense had not carried its burden of showing a reasonable probability
that the victim's accusation against her half-brother was false. It is apparent that the court was faced
with the conflicting testimony of the victim and her half-brother and found that of the victim more
credible. Of course, "the fact that an accused states that the accusation against him is false is hardly
evidence sufficient to raise a reasonable probability of falsity." (Punctuation omitted.) Wagner v.
State, 253 Ga.App. 874, 878(2), 560 S.E.2d 754 (2002). The trial court had the opportunity to
observe the witnesses' demeanor and consider their interest in the case, and "a trial court's ruling
upon the admissibility of such evidence will not be overturned absent an abuse of discretion. [Cit.]"
Kelley, supra, 233 Ga.App. at 251(5), 503 S.E.2d 881. We do not find an abuse of discretion here.
Williams also asserts that the accusation must have been false because even though the victim
reported it, Haney was never prosecuted. But this indicates only that insufficient evidence existed at
the time for a charge to be brought; it does not address the truth or falsity of the accusation. This
court has held a number of times that the fact that an accusation is not prosecuted is insufficient to
establish its falsity. See, e.g., Banks, supra, 250 Ga.App. at 729(1), 552 S.E.2d 903; Mann v. State,
244 Ga.App. 756, 759(2), 536 S.E.2d 608 (2000); Ingram v. State, 211 Ga.App. 252, 255(5), 438
S.E.2d 708 (1993).
Williams points to three instances in which he alleges that witnesses improperly bolstered
the victim's credibility. In the first instance, Williams takes issue with the testimony of the
child's treating psychologist that the results of her testing were "consistent" with the victim's
statements that she had been sexually abused. He maintains that this testimony was
improper bolstering. We do not agree. The testimony of experts that certain medical or
scientific tests resulted in findings consistent with molestation does not violate OCGA § 24-9-
80; it is admissible and proper. See, e.g., Gosnell v. State, 247 Ga.App. 508, 510(2)(b), 544
S.E.2d 477 (2001); Atkins v. State, 243 Ga.App. 489, 494, 495, 533 S.E.2d 152 (2000).
In Griffin v. State, 221 Ga.App. 138, 470 S.E.2d 744 (1996) (physical precedent only), a DFACS
caseworker testified similarly that she had "confirmed the allegations of sexual molestation of the
victim by appellant." (Punctuation omitted.) Id. at 139-140(2), 470 S.E.2d 744. We held there that
because the witness then was questioned about what "confirming the allegations" meant and
testified that it did "not necessarily mean that law enforcement has enough information to charge
anybody" (punctuation and emphasis omitted), error did not result. Id. In Amaechi v. State, 254
Ga.App. 490, 564 S.E.2d 22 (2002) (full concurrence in Division 3), we found in the context of
ineffective assistance *626 of counsel that a reversal was not required when a law enforcement
officer testified that his investigation substantiated the allegation against the appellant. Id. at
494(3)(e), 564 S.E.2d 22. We held that when viewed in context, the officer was simply testifying as to
why he obtained a warrant for appellant's arrest. Id. at 495, 564 S.E.2d 22. Here, as in Griffin, it is
clear that the DFACS caseworker was not expressing an opinion regarding the truthfulness of the
victim. She was testifying as to why her investigation was closed and why she did not continue to
follow the family. And as in Amaechi, "it is not probable that the outcome would have been different if
the questioned testimony had been excluded." Id.

Morrison was also asked about the victim's demeanor when she was interviewed. In responding,
Morrison testified that the victim had been somewhat hesitant because the subject was
uncomfortable for her, "but I didn't feel that it was at all a coached statement or anything like that.
She seemed very truthful and honest about this." This answer was not responsive to the question
asked, and we agree that it violated OCGA § 24-9-80. But the trial court gave an immediate curative
instruction, informing the members of the jury that they were the only ones who could determine the
truthfulness and honesty of the victim, that the witness was not permitted to testify to that, and that
they were to disregard that testimony.
Judgment affirmed.
RUFFIN, P.J., and MILLER, J., concur.
NOTES
[1] Although Williams denied paternity of the victim and was "not sure" whether the victim's younger
brother was his biological child, the children's mother began living with Williams early in her
pregnancy with the victim, and both children were raised as his.
[2] The victim told the foster mother, and later a DFACS caseworker that she enjoyed her father's
licking and rubbing her, that it enabled her to sleep better, and she wanted to return home so that it
could continue.
[3] Williams requested and was allowed a continuing objection, and he moved for mistrial.
[4] Although Roberson is physical precedent only, the special concurrence specifically notes that the
testimony in issue did not contribute to the verdict. Id. at 231, 526 S.E.2d 428.
In Re ND
Annotate this Case
648 S.E.2d 771 (2007)
In the Interest of N.D. et al., children.
No. A07A0026.
July 3, 2007.
Jenkins & Olsen, Samuel Jacob Gowin, Chatsworth, for Appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Jason
Samuel Naunas, Assistant Attorney General, for Appellee.
*772 MIKELL, Judge.
Appellant C.B., the biological mother of two girls, eleven-year-old N.D. and eight-year-old S.C.,
appeals the Juvenile Court of Murray County's provisional temporary placement order finding the
children deprived. Appellant argues that the juvenile court's order must be reversed because its
finding of deprivation was based on insufficient evidence and thus its decision to award custody to
the Murray County Department of Family and Children Services ("DFCS") was erroneous. Appellant
also challenges the trial court's decision to award temporary custody to DFCS of her two male
children, nine-year-old A.C. and four-year-old H.C.[1] We affirm the juvenile court's order finding N.D.
and S.C. deprived, but reverse to the extent that the order removes A.C. and A.H. from appellant's
custody.
"On appeal from a juvenile court's order finding deprivation, we review the evidence in the light most
favorable to the juvenile court's judgment to determine whether any rational trier of fact could have
found by clear and convincing evidence that the children were deprived."[2] In doing so, we neither
weigh the evidence nor determine the credibility of witnesses; instead, we defer to the trial court's
fact-finding and affirm unless the appellate standard is not met.[3] So viewed, the evidence adduced
at the deprivation hearing on February 28, 2006, showed that Frank Matthews, a DFCS supervisor,
filed a complaint on February 9, 2006, in which he alleged that DFCS received a referral from a
school social worker informing them that N.D. had been sexually abused by appellant's fiancé; that
N.D. later recanted; that N.D.'s sister, S.C., who was the putative daughter of appellant's fiancé,
reported that she had been sexually abused by her grandfather, C.C., who was appellant's fiance's
stepfather; that the fiance's adult sister, Sharon Parks, said that she had been abused by C.C. when
she was a child; and that the caseworker was concerned about the girls' safety because appellant
had not defended them but said they were lying.[4] On February 13, 2006, the court entered an
immediate custody order placing N.D. and S.C. into the custody of DFCS.
At the deprivation hearing, Matthews testified that DFCS's relationship with this family began in
January 2000, with an allegation by N.D. that she and her brother, A.C., were physically abused,
which allegations were substantiated, but the case was closed; that four unsubstantiated referrals
followed over the next five years, two of which involved alleged sexual abuse; and that in the incident
which led to the filing of the petition, N.D. said that appellant's fiancé touched her private parts with
his hands and with his private parts and made her put his penis in her mouth. Matthews further
testified that appellant's fiancé denied touching N.D. and that appellant and S.B. told him that N.D.
was a compulsive liar; that appellant's fiancé refused to take a lie detector test and had failed to
undergo the psychosexual evaluation that DFCS asked him to attend. As a result of the incident,
N.D. was placed with appellant's mother, S.B.
On cross-examination, Matthews acknowledged that N.D. made an allegation of sexual abuse
against C.C. in February 2003, but it was unsubstantiated; that N.D. also made unsubstantiated
allegations of physical abuse; and that N.D. recanted her allegation about appellant's fiancé to her
homestead therapist, Wilma Carter, on August 29, 2005. When cross-examined by the attorney for
the children, however, Matthews explained that unsubstantiated does not mean that an allegation is

untrue, just that DFCS was unable to *773 follow up on the allegation and that he did not believe
N.D. when she recanted.
Regarding S.C., Matthews testified that on February 7, 2006, he received a referral, informing him
that S.C. had been sexually abused by C.C. Matthews recalled that when he asked appellant about
S.C.'s statement, appellant said that the child "was known to fib." However, Matthews recalled that
appellant's mother S.B. was present when he attended N.D.'s interview at the Greenhouse Facility
and that S.B. indicated that she knew that C.C. had molested his stepdaughter, Parks. Matthews
also concluded from that conversation that appellant was also aware that C.C. had molested Parks.
In addition to the evidence of the alleged sexual abuse, Matthews also testified that he had received
reports from S.C.'s school that she was having trouble and that her brother, A.C., who was suicidal,
was not taking his medication because his Medicaid coverage lapsed. S.C. also told Matthews that
her father picked up A.C. by the neck and pinned him against a wall because the boy could not find
his shoes.
Amanda Osgatharp, a DFCS caseworker, testified that she investigated N.D.'s 2005 allegation
against appellant's fiancé; that she first interviewed N.D. at school; that N.D. was very upset and told
her that the touching began when appellant's fiancé told her to massage his feet and kicked her in
her private area when she did not do it correctly; that N.D. also told her that appellant's fiancé would
not let her put on underwear one night and touched her with his hands; and that he touched her
vagina with his penis and made her put it in her mouth, which sometimes made her throw up.
Osgatharp also testified that she interviewed appellant at her home on the same day that she initially
interviewed N.D., and appellant said that N.D. lies all of the time. Appellant also informed Osgatharp
that having her fiancé leave the house was not an option. When appellant attempted to talk to N.D.
about the allegations in Osgatharp's presence despite Osgatharp's request that she not do so,
Osgatharp concluded that it was necessary to remove N.D. from the home that day because she
knew that appellant would badger N.D. about the allegation.
Paige Merit, the children's school counselor, testified that she was the person who contacted DFCS
over the five-year period; that S.C. was watching a video about inappropriate touching with her class
when she announced, "my granddaddy does that to me"; that S.C. told her that C.C. had touched
her twice and that when S.C. told her grandmother, she was told to stay away from C.C.; that N.D.
told her about the inappropriate touching by appellant's fiancé but later recanted; and that she did
not report N.D.'s recantation to DFCS because she did not believe it.
Parks, the children's aunt and appellant's fiance's sister, testified that her adopted stepfather, C.C.,
sexually abused her from age four or five until she was fourteen or fifteen years old; that she told her
mother about it, but her mother did not believe her; that her mother was still married to C.C.; and that
she never told appellant about the abuse because when she saw appellant's children at her mother's
house, they were in a different part of the house than C.C.
Appellant testified that she believed N.D. when she first accused C.C. of touching her inappropriately
in 2003; however, she nonetheless allowed her children to stay with the grandparents after
instructing the grandmother to keep the children with her. When asked why she let the children stay
there, appellant responded that they only stayed there during the day and that C.C. stayed in the
bedroom all the time. Appellant further testified that when she initially spoke with Matthews about

S.C.'s allegations, she doubted S.C.'s credibility; that she still did not know if she believed the
allegation that N.D. made against her fiancé; and that N.D. later told her that the allegation was
untrue, but she lied because she wanted to go to S.B.'s house. Appellant still lived with her fiancé but
maintained that she never left her girls alone with him because she was molested by her father when
she was 11 years old. Appellant also testified that after the allegations were made, she still left her
children with their paternal grandmother because she trusted her; that the grandmother had been
*774 coming over to their house recently to keep her two boys so that they would not be exposed to
C.C.; and that she would never allow her children to be exposed to C.C. again.
In its temporary placement order, the court found that the children were deprived and in need of the
protection of the court, that DFCS attempted to work with the parents to no avail, and that allowing
the children to remain in the home would be contrary to their welfare. The court granted DFCS
custody of the children for a period not to exceed one year from the date of their initial placement
with DFCS and ordered DFCS to assume custody of appellant's other children, A.C. and A.H. The
court also directed that DFCS submit a written case plan to the court after meeting with the parents
and that the evaluations and treatment prescribed in that plan be completed before the parents were
reconsidered for a return of custody. DFCS prepared a reunification plan, which provided that C.C.
have no contact with the children; that appellant's fiancé complete a psychosexual examination and
follow any recommendations made; and that both parents attend and successfully complete a
psychological evaluation, obtain and maintain a source of income, and maintain stable, clean, and
safe housing to accommodate their family.
1. In her first two enumerated errors, appellant argues that the juvenile court's finding of deprivation
was not supported by clear and convincing evidence, and consequently, the placement of the
children with DFCS was erroneous. We disagree.
The definition of a deprived child focuses upon the needs of the child without regard to parental
fault.[5] A deprived child is one who "[i]s 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."[6] Parental unfitness, whether intentional or unintentional, that results in
abuse or neglect of the child may result in the parent losing temporary custody of a deprived child.[7]
In this case, we conclude that the finding of deprivation and temporary loss of custody of N.D. and
S.C. were supported by the evidence in the record.
Appellant testified that she believed N.D.'s 2003 allegation against C.C., but she continued to expose
her children to him despite her knowledge that he had molested Parks. Although appellant herself
was sexually abused as a child, she repeatedly told the DFCS personnel involved that her daughters
were liars. She continued to live with her fiancé, and even at the time of the hearing, testified that
she could not say that she believed N.D. Before the court was also evidence that several referrals
had been made to DFCS pertaining to the children, including a substantiated claim of physical abuse
against N.D. and A.C. Therefore, we find that there was clear and convincing evidence to support
the juvenile court's finding that N.D. and S.C. were deprived and needed to be removed from
appellant's custody.[8]

*775 2. Appellant argues that the juvenile court erred when it sua sponte removed A.C. and H.C.
from her custody as a part of ruling on the deprivation petition filed on behalf of N.D. and S.C. We
agree.
In its order, the juvenile court did not state the basis for its decision to remove A.C. and H.C. from
appellant's custody. Although OCGA § 15-11-45(a)(4) permits a child to be taken into custody by an
officer of the court "if there are reasonable grounds to believe that the child is suffering from illness
or injury or is in immediate danger from his or her surroundings and that his or her removal is
necessary[,]" we cannot find in the instant case that this statute authorized the removal of these
children from appellant's custody. There was no petition for deprivation filed on behalf of A.C. and
H.C., affording appellant an opportunity to respond thereto. Although the trial court noted in its order
that the guardian ad litem attorney recommended that all of the children be found to be deprived and
placed in the custody of DFCS, the court made no findings whatsoever as to H.C. and as to A.C.,
made limited findings.[9] Although DFCS is not precluded from filing a petition as to A.C. and A.H.,
we cannot condone the removal of the children from appellant's custody in conjunction with the grant
of the deprivation petition filed as to N.D. and S.C. where the findings made as to A.C. and H.C. did
not demand a parental loss of custody. "Only under compelling circumstances found to exist by clear
and convincing proof may a court sever the parent-child custodial relationship."[10] Such proof has
not been offered in the instant case.
The trial court's order is affirmed as to the girls, N.D. and S.C. As to the boys, A.C. and H.C., the trial
court is reversed with direction. The boys are to stay in the custody of DFCS for 60 days after receipt
of the remittitur, with leave for DFCS to file a petition for a provisional temporary placement order.
The mother shall have notice and an opportunity to be heard. Unless the trial court orders again a
temporary placement, with written findings of fact, the boys will be returned to their mother after the
60 days.
Judgment affirmed in part and reversed in part with direction.
JOHNSON, P.J., and PHIPPS, J., concur.
NOTES
[1] These were the children's ages at the time of the hearing. Their birth dates are not in the record.
[2] (Punctuation and footnote omitted.) In the Interest of G.G., 253 Ga.App. 565, 560 S.E.2d 69
(2002).
[3] In the Interest of B.M.B., 241 Ga.App. 609, 527 S.E.2d 250 (1999).
[4] N.D. was removed from appellant's home on April 20, 2005, and placed in the custody of her
maternal grandmother, S.B.S.B., however, violated N.D.'s safety plan when she allowed her son,
who tested positive for amphetamines, to stay in her house.
[5] In the Interest of J.W., 271 Ga.App. 518, 610 S.E.2d 144 (2005).

[6] OCGA § 15-11-2(8)(A); In the Interest of M.L.C., 249 Ga.App. 435, 436(2), 548 S.E.2d 137
(2001).
[7] (Citation omitted.) In the Interest of A.S. and S.A., 285 Ga.App. 563, 646 S.E.2d 756 (2007).
[8] See In the Interest of S.Y. et al., 284 Ga.App. 218, 644 S.E.2d 145 (2007) (juvenile court
authorized to consider evidence that mother left children with relative she knew was unsuitable to
supervise them as probative of mother's inability to protect her children); In the Interest of J.H., 267
Ga.App. 541, 544, 600 S.E.2d 650 (2004) (finding that mother failed to protect child from abuser
after first incident contributed to conclusion that there was a lack of parental control that caused the
child's deprivation). See also In the Interest of K.C.H., 257 Ga.App. 529, 531(2), 571 S.E.2d 515
(2002) (mother's choice to expose her child to a potentially dangerous predator who had sexually
abused her older child constituted clear and convincing evidence that the children were deprived).
Compare In the Interest of D.C., 259 Ga.App. 157, 576 S.E.2d 77 (2003) (trial court finding that there
was no deprivation affirmed where there was no investigation of the allegations or suspicions of
sexual abuse, and no witness testified to observing any inappropriate behavior by either potential
abuser toward children).
[9] The trial court found that the mother admitted that A.C. suffered from depression and reported to
school officials that he had attempted suicide; that A.C. had been accused of aggressive behavior at
school; and that he was without medication once when appellant allowed their medicaid coverage to
lapse though she understood his need for the medication.
[10] (Citation omitted.) In the Interest of A.J.I., 277 Ga.App. 226, 227, 626 S.E.2d 195 (2006).
------------------------------------------------------------------------------------------------------------
A TRUE EXAMPLE OF THE PICTURE DFCS IS PAINTING OF ME
NEW JERSEY DIVISION OF CHILD PROTECTION AND
PERMANENCY v. A.W.
Plaintiff-Respondent,
v.
A.W.,
Defendant-Appellant,
and
K.Y.,
Defendant-Respondent.

____________________________________
IN THE MATTER OF K.A.Y., a minor.
____________________________________
Submitted April 27, 2015 - Decided
Before Judges Sabatino, Simonelli, and Gilson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County,
Docket No. FN-02-267-11.
Mario M. Blanch, attorney for appellant.
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child
Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann
Avram Huber, Deputy Attorney General, on the brief).
K.Y., respondent pro se.
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.A.Y. (Lisa M. Black,
Designated Counsel, on the brief).
PER CURIAM
After presiding over more than twenty days of trial sessions and hearings, a Family Part judge
concluded that defendant A.W. ("the mother") abused and neglected her son K.A.Y. ("Kevin")2 in
violation of N.J.S.A. 9:6-8.21(c)(4). As the judge found, the mother did so by coaching Kevin into
making false allegations of sexual and physical abuse against his father K.Y. ("the father") in the
wake of the couple's recent divorce.
More specifically, the trial judge found that the mother emotionally and psychologically abused Kevin
by compelling him to make untruthful statements about his father, and by causing him to be
subjected to numerous sexual abuse evaluations and interviews. Although the mother denied
engaging in any misconduct, the judge found her testimony was not credible.
After making these findings of fact, the trial judge transferred custody of Kevin to the father. The
judge also awarded the father a portion of his counsel fees. In addition, the judge ordered the mother
to obtain psychiatric treatment.
The mother now appeals, claiming that the trial judge erred in finding that she had abused or
neglected Kevin. She asserts that the judge ignored what she contends was persuasive evidence
that her son had, in fact, been sexually abused. She also challenges the trial court's orders directing
her to obtain psychiatric treatment and awarding the father partial counsel fees. We affirm,

substantially for the reasons articulated in Judge Frances A. McGrogan's comprehensive twenty-five-
page written opinion dated October 4, 2012.
I.
We need not discuss at length the underlying facts and the evidence adduced at trial, which are
exhaustively set forth in Judge McGrogan's written opinion. We need only provide the following
summary.
A.
The mother and father were married in 2003. Their only child is Kevin, who was born in January
2005. The parents divorced in May 2008. Pursuant to the divorce settlement, the mother received
primary residential custody of Kevin, with the father having parenting time with Kevin on alternate
weekends and Wednesday evenings. In addition, the father was granted daily telephone contact with
Kevin.
The record shows that the mother first began to prompt Kevin to make false accusations against the
father in 2009. The accusation started around the same time that steps were being undertaken to
enforce the divorce settlement and compel the sale of the former marital residence against the
mother's wishes.
On July 8, 2009, the Division received an anonymous referral by a woman claiming that Kevin was
being molested by his father. Given the caller's references to her marriage with the father, the
mother was believed to be the caller, which the Division confirmed the following day. The following
day, the mother called the Division several times wanting to retract her allegations. The Division
intake worker noted that she sounded "mentally unstable." The Division notified the Bergen County
Prosecutor about the mother's allegations and attempted to investigate them, but the mother refused
at that time to cooperate.
Nevertheless, during the subsequent investigation, the mother again alleged that the father had
sexually molested Kevin. However, during questioning by Division workers, Kevin did not disclose
any sexual or physical abuse. The mother tried posing leading questions to Kevin to prompt him to
acknowledge such abuse, but her efforts were unsuccessful. Afterwards, Kevin was interviewed by
the Hudson County Prosecutor's Office, and he again made no disclosure of abuse.
On July 10, 2009, the mother's matrimonial attorney filed a motion in the Family Part to suspend the
father's visitation, and requested that the Division send a letter to the judge handling the matrimonial
case detailing the mother's sexual abuse allegations. Later that day, the mother called the Division
again. She appeared less concerned in that phone call with the son's alleged molestation than she
was about aspects of her divorce settlement, such as the sale of the marital home.
The father was interviewed by the Hudson County Prosecutor's Office. He denied the allegations,
although he did admit to sleeping naked with Kevin. The father explained that Kevin had started
sleeping in the father's bed because the mother had allowed the child to sleep with her after the
couple separated. Although the father conceded that he occasionally showered with Kevin, he

insisted that Kevin washed his own genitals. The father maintained that his ex-wife was making false
claims about the abuse. He further denied her assertions that he was bipolar and that he had no
family support.
Several days later the matrimonial judge overseeing the parties' divorce ordered, as a precautionary
measure, that the father's visitation be supervised. Later that month, Kevin's daycare facility reported
to the Division that the mother had asked the staff to "back up" her allegations of the father's
purported sexual abuse of Kevin.
That same day, Dr. Nina Agarwal, an expert in pediatric child abuse at Audrey Hepburn Children's
House ("AHCH") conducted a medical examination of Kevin. The physical examination was normal,
and Dr. Agarwal at that point could neither confirm nor rule out the existence of sexual abuse. As a
precaution, she recommended that visitation between the father and Kevin be supervised. In
response, the mother complained that her nanny, who already had been supervising visitation
between the father and the child, no longer wanted to participate as a supervisor. A friend of the
father, R.V., was offered as a visitation supervisor instead, and she undertook that role.
In August 2009, the mother again called the Division, claiming that Dr. Agarwal had substantiated
Kevin's sexual abuse by the father, and further claiming that Dr. Agarwal wanted the father's
visitation to be suspended. However, Dr. Agarwal's report had stated otherwise, recommending only
supervised visitation. Later that month, the Fairview Police Department contacted the Division
concerning another series of allegations of sexual abuse the mother had made against the father.
In September 2009, a representative of the Bergen Crisis Intervention Unit called the Division to
relate allegations of Kevin's sexual abuse by his father. The representative claimed that the father
had been molested as a child. The representative further stated that Kevin had indicated that his
father was likewise abusing him. However, upon further investigation, the Division determined that
there actually had been no visitation with the father for approximately three weeks, due to the mother
lacking funds to pay for a supervisor. The father was cooperative with the Division, and believed that
the mother's recent allegations were due to a real estate agent's visit to the marital home because
the matrimonial court had ordered the home to be sold. Meanwhile, Kevin's daycare had reported no
problems, and observed that he had been happy and talkative. Ultimately, the Division determined
that the allegations were unfounded, but kept the case open.
In January 2010, the mother again alleged that Kevin was sexually and physically abused by the
father, and that the father and R.V., the visitation supervisor, drank alcohol together to the point of
intoxication. The Division determined that these latest allegations were unsubstantiated.
Later that month, the mother took Kevin to the emergency department at a local hospital, alleging
that the child was complaining that his penis hurt following a visit with the father. The hospital's
examination was normal, and the allegations were unsubstantiated. By this time, the Division had
become suspicious that the mother was coaching Kevin to make false allegations of abuse against
his father.
In February 2010, the mother alleged that the father slapped Kevin. However, a medical examination
revealed that Kevin was unharmed and that he did not express any fear of his father.

In March 2010, Kevin's therapist, Carol Loscalzo, a licensed social worker, contacted the Division to
report the suspected physical abuse of him. Kevin consequently had another medical examination at
AHCH, but the evaluator there found no evidence of physical or sexual abuse. Nevertheless,
AHCH's evaluator wanted to interview Kevin again, and also wanted both parents to complete
psychological evaluations. In Kevin's next interview at AHCH, he denied any physical or sexual
abuse, but did state that his father had burnt him with a candle. After further questioning, Kevin could
not describe any details of the purported candle incident. The Division determined that these
allegations against the father were unfounded.
In April 2010, the mother brought Kevin to the hospital with a nose bleed. She again alleged that
Kevin had been physically abused by the father. When the Division's case worker spoke with a
representative from the child's school, the representative explained that she was worried about Kevin
due to the mother's bizarre behaviors. For example, the representative reported to the Division that
the mother occasionally dropped off Kevin, who was then five years old, with a milk bottle and made
him wear pull-up diapers, instead of underpants. She further noted that while Kevin was in school,
his behaviors were normal and that he never made any disclosures about sexual or physical abuse
by his father.
Subsequently, a Division case worker interviewed Kevin. Kevin seemed anxious and eager to show
the worker the spots where his father had allegedly cut him with a knife on his neck and back.
However, the case worker was unable to see any marks on the child. Nor could Kevin describe any
specific details of the alleged knife incident.
B.
On April 26, 2010, the Division filed a verified complaint for investigation pursuant to N.J.S.A. 30:4C-
12 on behalf of Kevin. The parents were named defendants. That same day, the Family Part judge
issued an order to show cause.
Throughout May and June 2010, AHCH performed a series of psychosocial evaluations of Kevin and
his parents. The evaluations were supervised by Anthony V. D'Urso, Psy.D., a psychologist. The
AHCH evaluators concluded that Kevin had not been sexually or physically abused. Instead, they
found Kevin's social and emotional functioning had been negatively affected, due to the various
interviews and examinations he had been subjected to because of the mother's allegations.
Kevin and his parents then each began therapy at AHCH. During a therapy session, the mother
alleged that Kevin had reported that the father had digitally penetrated his rectum during a recent
visit. When asked during his own therapy session about the alleged incident, Kevin reported that it
was untrue, and became angry with his mother. Kevin implied that the surrounding events were
making him confused, and he stated that he wanted to see his father every day.
Kevin's AHCH evaluators determined that he was experiencing emotional and behavioral difficulties,
due to the mother's unsubstantiated allegations of sexual abuse. Consequently, AHCH cautioned
against conducting further investigations of future allegations of Kevin's abuse by his father.

In November and December 2010, the mother once again claimed that Kevin had been sexually
abused recently by the father. Upon investigation, these further allegations of sexual abuse were
ruled out.
Despite all of this, false accusations of abuse committed by the father continued to occur. In March
2011, Rachel Polan of the Children's Aid and Family Service ("CAFS") reported that during a
supervised visitation session between Kevin and his father, Kevin explained that the mother had told
him that the father had hit him on the mouth, despite Kevin's protestations to the contrary. That same
month, Kyongok Kim, a therapist at AHCH, reported that Kevin was emotionally stable when he was
with his father and had interacted in a positive manner. By contrast, Kevin would become agitated,
aggressive, and "out of control" when he was with his mother.
Based on these circumstances, AHCH was concerned about Kevin's emotional stability while in his
mother's care. AHCH concluded that the child should be removed from her care and placed instead
with his father.
Shortly thereafter, the Division tried to provide the mother with advanced notice of the Division's plan
to remove Kevin from her care due to her perceived emotional instability. Accordingly, in April 2011,
a Division case worker attended the mother's therapy session at AHCH to inform her of the
upcoming court hearing to transfer custody of Kevin to the father, based upon the Division's
substantiation of her emotional and psychological abuse of the child. The mother had a negative
reaction to this plan. Among other things, she alleged that Kevin had reported that a Division case
worker had abused him. Her aberrational behavior, coupled with AHCH's belief that she might harm
the child, led the Division to carry out a Dodd removal of Kevin from his mother's care.3
When Kevin was told he would be living with his father, he became happy and excited. Upon being
permitted to say goodbye to his mother, Kevin stated in a "nonchalant manner [that] he would no
longer be living with her, but would visit." That same day, Dr. D'Urso recommended supervised
visitation between the mother and Kevin to allow AHCH staff to evaluate any risks that she posed to
the child.
C.
In April 2011, the Division filed a verified complaint in the Family Part for care and supervision of
Kevin, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The parents were named defendants.
The court signed an order to show cause that same day, continuing joint legal custody of Kevin, but
awarding the father physical custody. The mother was granted at that point daily telephone contact
with Kevin and supervised visitation.
In June 2011, AHCH reported that the mother continued to display anxiety and concerns about
Kevin's welfare while he was with his father. She had been encouraged not to ask Kevin during daily
telephone conversations about how he was being treated by his father. Instead of trying to improve
her relationship with Kevin, however, the mother continued to focus on her past allegations of the
child's sexual abuse. According to the Division's proofs, the mother was unable to successfully co-
parent with the father due to her continued accusations.

After he began living with his father, Kevin no longer manifested poor behavior or agitation. AHCH
confirmed later in June 2011 that Kevin's behavior and his affect had improved since his placement
with his father.
Between September and October 2011, Polan reported that Kevin had been dismissive of his mother
during visitation. The mother refused to show any insight into the reasons why she lost physical
custody of her child. She refused to comply with psychiatric recommendations. In contrast, Kevin
appeared to be emotionally bonded with his father.
D.
The trial court conducted the Title 9 fact-finding trial on numerous intermittent dates between
September 2011 and June 2012. Judge McGrogan carefully considered testimony from several fact
witnesses presented by the Division, including Division case workers, Polan from CAFS, the director
of Kevin's daycare program, and R.V., the visitation supervisor.
The Division also presented expert testimony from Dr. D'Urso, who found that the allegations of the
father's sexual abuse could not be clinically supported. Among other things, Dr. D'Urso noted that
during individual counseling sessions, Kevin retracted allegations of sexual abuse, revealing that he
would "get in trouble if he didn't say what mommy told him to say." Dr. D'Urso also noted that the
mother showed signs of "obsessive compulsive behavior, histrionic, self-centered behavior," and that
she displayed delusional and disordered thought.
Dr. Agarwal, the AHCH pediatrician, also testified for the Division. She confirmed that her evaluation
of Kevin in July 2009 presented no medical evidence of sexual abuse. She also observed that the
mother's behavior was anxious, and that she had recommended a mental health assessment.
The Division presented a third expert witness, Dr. Samiris Sostre, a psychiatrist. Dr. Sostre testified
that the mother's delusion that Kevin had been sexually abused, despite evidence to the contrary,
was a psychotic symptom, not the basis of a personality disorder. Dr. Sostre stated that a delusional
parent would be unable to properly parent, and that a child under the care of such an individual
would be drawn into his or her psychotic process.
The Law Guardian, who supported the Division's request for a finding of the mother's abuse and
neglect, presented factual testimony at trial from the father. The father described that the mother's
behavior had become increasingly aberrational after the divorce, which had prompted him to seek
primary custody of Kevin. In particular, the father described an incident around Halloween 2008, in
which the mother smashed a pumpkin that Kevin had carved with him. She apparently did so
because she was upset that the marital residence was going to be sold.
The mother testified at trial in her own defense. She claimed that the father had been molested as a
child. She also claimed that in the fall of 2010, Kevin disclosed to her that the father had inserted his
finger into Kevin's anus. The mother additionally stated that she had been unaware of Kevin's
disclosures of abuse when she was served with the Division's complaint in April 2011. She
emphatically denied coaching Kevin to make false allegations against his father.

The mother presented expert testimony from Dr. Michael Milano, a psychiatrist, concerning her
mental health. After a one-hour evaluation, Dr. Milano did not find any evidence of a major mental
disorder. He was unable, however, to offer an opinion as to whether the mother suffered from a
delusional disorder.
The mother's counsel also called to the stand Dr. Michael Peter Gentile, a psychiatrist, who had
evaluated the mother at the Division's request. Dr. Gentile found no psychosis or delusional disorder
on his part. However, he believed that the mother displayed symptoms of an adjustment disorder
with anxiety, and that she also had narcissistic personality traits.
Loscalzo, Kevin's previous therapist, also testified for the mother. According to Loscalzo, Kevin was
difficult to engage and had problems with boundaries. Loscalzo explained that the mother was
concerned about Kevin because the father slept naked in the same bed with him, because she
believed that Kevin was being sexually abused, and because the mother observed that Kevin's
behavior would decline after the father's visitation. By way of illustration, Loscalzo referred to an
incident during a session where Kevin undressed a male doll, laughed at the doll's buttocks, and
then pulled down his own pants and laughed.
E.
After considering these and other extensive proofs, which Judge McGrogan canvassed in greater
detail in her written opinion, the judge made the following ultimate findings
Pursuant to N.J.S.A. 9:6-8.46(b)(1), the Division must prove an act of abuse or neglect by a
preponderance of the evidence. The Division has met that burden.
There is no evidence to support [the mother's] contention that [the father] sexually abused [Kevin].
However, there is substantial credible evidence to support a finding that [the mother] emotionally and
psychologically harmed the child as defined in N.J.S.A. 9:6-8.21(c)(4)(b). Despite the lack of any
evidence that [the father] abused the child, [the mother] continued to make allegations and continued
to coach the child to make allegations against his father. [Kevin] was subjected to multiple
evaluations, examinations and interrogations, all with negative results.
A finding of abuse or neglect does not require a finding of intent to harm. G.S.,4 supra, at 175.
Rather, the Court must find the parent's actions were deliberate, even if the result was unintended.
Id.
A determination of whether [the mother] suffers from a delusion, as indicated by Dr. Sostre, or she
has engaged in a course of vindictive behavior in order to completely sever [the father] from [Kevin's]
life, is not required. It is self-evident that [the mother's] conduct has had a harmful effect on the child.
When [Kevin] entered nursery school, he was a happy, well-adjusted child. He is now an angry,
oppositional, and defiant little boy. He is only seven years old and has been in therapy for more than
three years.

The child is angry and oppositional toward his mother. It would be contrary to the child's welfare to
remove him from his father's custody. If returned to his mother, he would again be placed at
substantial risk of harm. The need for therapeutic intervention between mother and child continues.
[(Emphasis added).]
Subsequently, after dispositional hearings and other proceedings, Judge McGrogan issued an order
on March 28, 2013, granting sole custody of Kevin to his father and suspending visitation with the
mother. The judge determined that the mother continued to pose a risk to Kevin's ongoing emotional
health. On that same date, the judge awarded counsel fees to the father of $26,364, a portion of the
more than $46,000 in legal fees he had incurred.
This appeal by the mother ensued. The father has not cross-appealed the sufficiency of the amount
of the fee award.
II.
On appeal, the mother argues that the trial court (1) erred in finding that she had engaged in abuse
or neglect of her son; (2) improperly ignored evidence of sexual assault by the father; (3) improperly
ordered her to receive psychiatric treatment, and (4) unfairly awarded partial counsel fees to her ex-
husband. None of these contentions have merit.
Abuse and neglect, as defined by N.J.S.A. 9:6-8.21(c), occurs when
[a] child whose physical, mental, or emotional condition has been impaired or is in imminent danger
of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum
degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably
inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of
excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of
the court.
[N.J.S.A. 9:6-8.21(c)(4).]
The statute does not require that the child experience actual harm. N.J.S.A. 9:6-8.21(c)(4)(b); see
also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining that the
Division need not wait until a child experiences an actual injury); In re Guardianship of D.M.H., 161
N.J. 365, 383 (1999) (stating that the court does not need to "wait to act until a child is actually
irreparably impaired by parental inattention or neglect"). Instead, a child can be abused and
neglected if his or her physical, mental, or emotional condition has been "impaired or is in imminent
danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4)(b). The Title 9 analysis is fact-sensitive, and
the court must consider the totality of the circumstances. P.W.R., supra, 205 N.J. at 33. The primary
focus is to preserve the safety of the child. N.J.S.A. 9:6-8.8.
The Supreme Court has held that the abuse and neglect standard is satisfied when the Division
demonstrates that a parent has failed to exercise a minimum degree of care. G.S., supra, 157 N.J. at
181. A "minimum degree of care" encompasses conduct that was grossly or wantonly negligent, but

not necessarily intentional. Id. at 177-78. Wanton negligence is conduct that was done with the
knowledge that injury is likely to result. Ibid. A parent's action or inaction can rise to the level of
wanton negligence even if he or she did not intend to cause injury. Id. at 179. The Court has
recognized that a parent should be liable for the foreseeable consequences of his or her choices.
Ibid.
Our scope of review of a trial court's factual findings in this context is narrow. N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We defer to the judgments of the Family Part if
those conclusions are sustained by "adequate, substantial, and credible evidence" in the record. N.J.
Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision should only be reversed
or altered on appeal if the findings below were "so wholly unsupportable as to result in a denial of
justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (internal quotation
marks omitted).
Applying this well-established, limited scope of review here, we conclude there is abundant credible
evidence in the record to support Judge McGrogan's findings of the mother's psychological abuse of
her young son.
The record is replete with factual and expert proof that the mother emotionally and psychologically
harmed Kevin by falsely coaching him into claiming that his father had sexually and psychologically
abused him, and by subjecting Kevin to numerous unnecessary expert evaluations. The mother
repeatedly caused Kevin to undergo sexual abuse examinations and took him numerous times to the
police to report false allegations of abuse. Indeed, within the span of one year, the mother made, or
assisted other individuals in making, a total of seven false referrals to the Division.
Contrary to the mother's contentions on appeal, the judge did not ignore her accusations of abuse.
Instead, the judge properly considered them, along with their lack of corroboration, as well as Kevin's
own statements that the mother had induced him to lie.
As Judge McGrogan rightly found, "it is self-evident that [the mother's] conduct has had a harmful
effect on the child." This finding was corroborated by the caseworkers, daycare staff, and the
Division's testifying experts. In addition, there is more than ample evidence to sustain the judge's
shift of residential custody to the father, and the cessation of the mother's parenting time while she
continued to exhibit instability.
The judge had a sound basis to order the mother to undergo therapy. Indeed, the evidence in the
record essentially compelled such remedial and protective action.
Little comment needs to be made about the award of partial counsel fees to the father. The father's
need for legal representation in this case was clearly provoked by the mother's misconduct. The
judge acted well within her discretion under Rule 5:3-5 in awarding him partial fees. See also
Williams v. Williams, 59 N.J. 229, 233 (1971).
The fee award was reasonable, even taking into account the respective income levels of the parties.
We will not interfere with the trial judge's "broad discretion" in its fee-shifting determination here.
Iafelice ex rel. Wright v. Arpino, 319 N.J. Super. 581, 590 (App. Div. 1999).

Affirmed.
1 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of
Child Protection and Permanency (Division). L. 2012, c. 16. (hereinafter "the Division").
2 To protect privacy interests and for ease of reading, we use initials and a fictitious name for the
child and initials for some of the other individuals mentioned in this opinion. See R. 1:38-3(a); R.
5:12-4(b).
3 A Dodd removal is an emergent removal of a minor without a court order pursuant to the Dodd Act,
N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
4 G.S. v. Dep't of Human Servs., 157 N.J. 161 (1999).
-------------------------------------------------------------------------------------
Harris v. State
Annotate this Case
726 S.E.2d 455 (2012)
314 Ga. App. 816
HARRIS v. The STATE.
No. A11A1615.
March 15, 2012.
John E. Harris, pro se.
Barry E. Morgan, Solicitor-General, Christopher S. Lanning, Thomas J. Campbell, Assistant
Solicitors-General, for appellee.
McFADDEN, Judge.
John E. Harris appeals the denial of his motion for directed verdict of acquittal in his prosecution for
misdemeanor obstruction of a law enforcement officer. In order to affirm on this record, we would be
required to hold that any refusal to cooperate, even the peaceable assertion of constitutional rights,
can support an obstruction conviction. We decline to adopt such a rule and find the evidence
insufficient to support the conviction. We therefore reverse.
A motion for a directed verdict of acquittal is due to be granted when there is *456 no conflict in the
evidence, and the evidence and its reasonable deductions and inferences demand it. OCGA § 17-9-

1(a). When reviewing the trial court's denial of a motion for directed verdict, the reviewing court may
consider all the evidence in the case and must view the evidence in the light most favorable to the
verdict. Schroeder v. State, 261 Ga.App. 879, 881-882(2), 583 S.E.2d 922 (2003). But where, as
here, the evidence of record includes an audio or video recording, "[t]o the extent that the controlling
facts ... are undisputed because they are plainly discernable from the ... recording, we review those
facts de novo." Johnson v. State, 299 Ga.App. 474, 474-475, 682 S.E.2d 601 (2009), citing Lyons v.
State, 244 Ga.App. 658, 658-659, 535 S.E.2d 841 (2000). The standard for reviewing a denial of a
motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence was sufficient for a rational trier of fact to
find beyond a reasonable doubt that the defendant was guilty of the charged offense. Harvey v.
State, 212 Ga.App. 632, 634(2), 442 S.E.2d 478 (1994).
The accusation charged Harris with "unlawfully knowingly and willfully obstruct[ing] and hinder[ing] C
SCAGGS, a law enforcement officer, in the lawful discharge of [her] official duties...." Detective
Scaggs of the Cobb County Police Department testified that on July 29, 2009, the Department of
Family and Children Services ("DFCS") notified the Cobb County police that they needed to go to
Harris's house to check on the welfare of a 10-day-old infant, C.H., and if she were there, to take her
into protective custody. Harris is C.H.'s father. Her mother is Kayla Bagwell. C.H.'s older siblings had
already been placed in protective custody; C.H. had not been taken at the same time because she
had not yet been born.
The police officers had a document reflecting a bond condition for a domestic violence case that
restricted Harris's and Bagwell's contact with each other. The residence was the address Bagwell
had listed with the police, the courts, and DFCS; and the bond condition stated that Harris could not
be at the residence.
Five officers went to Harris's house. They knocked on the door and identified themselves. Harris
exited the house and shut the door. An audio recording of the encounter was played for the jury and
entered into evidence. The audio recording demonstrated that the following transpired:
Audible footsteps [Inaudible] Male Officer 1: Is Ms. Kayla Bagwell in? Harris: [Inaudible] unless you've got a
court order or, or [inaudible]. Male Officer 2: We have a special bond [inaudible] [inaudible] Harris: Let me see
it. Male Officer 1: ... special bond ... Ms. Kayla Bagwell [inaudible]. Harris: This case is over with. Be right
back, get. I've got a, uh, I've got the resolution to this. There's a ... Female Officer: Okay, well you're not going
back in there by yourself. One of us is going in there with you. Harris: Okay, then none of us are going. Male
Officer 1: Is the child here? Harris (talking at the same time as the officer): I want you guys... Male Officer 1: Is
the child here? Harris: What? Male Officer 1: Is the child here? Harris: What child? Okay ... Male Officer 1:
The ten-day old.... Harris: Okay, I would like you guys to leave. Male Officer 1: No sir, that's not gonna
happen. Harris: Okay. Male Officer 1: We can either do this the easy way or we can do it the hard way. Harris:
What's the easy way and what's the hard way? Male Officer 1: The easy way is for you to answer the
questions. Harris: I don't have to answer any questions. Male Officer 1: Okay. Harris: What's the hard way?
*457 Male Officer 1 (talking at the same time as Harris): ... do it the hard way ... for obstruction. Harris: For
what? Male Officer 1: For obstruction. Harris: For what? Male Officer 1: Obstructing ... Harris: Of what? Male
Officer 2: Our investigation. Harris: Into what? [inaudible] Male Officer 1 (talking at the same time as Harris):
Into whether or not there's a deprivation of a child. Harris: That's a civil matter. Male Officer 1: No, it's not.
[inaudible]. You think I do civil matters? Harris: No sir, I don't. Male Officer 1: Okay. Then why are you saying

you think it's a civil matter? Harris: Because deprivation's a civil matter. Male Officer 1: No, it's not. It's a
criminal matter. [inaudible] Female Officer (talking at the same time as Male Officer 1): No, it's not. Harris: No
sir, deprivation is a civil matter. I mean ... Male Officer 1: I ain't got time for this. Turn around. Harris: Alright.
Male Officer 1: Put your hands behind your back. Harris: Alright, fine. [inaudible] Male Officer 1: Put your
hands behind your back. [inaudible] Male Officer 1: You can sit there and say you want to obstruct us all day
long. [inaudible] Male Officer 1: I told you and I told you. Harris: My child is in the house. Male Officer 1: Okay.
See how easy that was?
From the knock on the door to the arrest, the entire encounter lasted 95 seconds. Harris made no
threats and was not violent. At trial, Harris testified that "I made a choice that day to not cooperate. I
didn't stand in the way and tell them they couldn't come in my house; I just didn't invite them into my
house and wasn't going to."
The accusation does not specify the conduct that obstructed Detective Scaggs. At trial, after
recounting the events leading up to Harris's arrest, an officer described his conduct as "basically, just
refusing to cooperate." On cross-examination that officer conceded that the basis for Harris's arrest
was "only ... two things ... he did not allow [the officers] in the house and he didn't answer questions
about the child." In its brief on appeal, the state argues that Harris's conviction can be sustained on
the basis of his "demand for the officers to leave the premises" and his "attempt[] to misdirect the
officers by repeatedly asking `what child,' feigning ignorance of the situation."
1. Harris argues that the trial court erred in not granting his motion for directed verdict because he
did not obstruct the police but instead stood on his rights under the First, Fourth and Fifth
Amendments to the United States Constitution. We agree with Harris that his conduct did not
constitute obstruction under the statute.
Because our decision is founded on statutory construction, we need not reach Harris's implicit claim
that the obstruction statute, as applied to his behavior, violated the Constitution. See Powell v. State,
270 Ga. 327, 327-328(1), 510 S.E.2d 18 (1998) (if appeal can be decided upon other grounds, it will
not be decided upon constitutional grounds); Southern R. Co. v. Schlittler, 1 Ga.App. 20, 58 S.E. 59
(1907) (same). See generally Ga. Transmission Corp. v. Worley, 312 Ga.App. 855, 856, 720 S.E.2d
305 (2011) (all statutes are presumed to be enacted with full knowledge of existing law); Haley v.
State, 289 Ga. 515, 521(2)(b), 712 S.E.2d 838 (2011) (construing statute prohibiting the making of a
false statement in matter within jurisdiction of government agency in manner so as to avoid First
Amendment concern).
OCGA § 16-10-24(a) provides that a person commits misdemeanor obstruction if the person
"knowingly and willfully obstructs or *458 hinders any law enforcement officer in the lawful discharge
of his official duties." As an initial matter, we agree with the state that the jury was authorized to
conclude that the officers were acting in the lawful discharge of their duties. The state presented
evidence that the officers had the authority to conduct a welfare check on the child pursuant to an
open deprivation case.
The more difficult question is whether the statute criminalizes Harris's conduct. We conclude that it
does not.

The statute's history sheds some light on its intended scope. At one time, this court construed the
misdemeanor obstruction statute so that violence or its verbal equivalent was an essential element
of the crime. See, e.g. Moccia v. State, 174 Ga.App. 764, 765, 331 S.E.2d 99 (1985); McCook v.
State, 145 Ga.App. 3, 5(2), 243 S.E.2d 289 (1978). Cf. Hudson v. State, 135 Ga.App. 739, 741-
742(2), 218 S.E.2d 905 (1975). But the statute was revised in 1986, and "the offense of
misdemeanor obstruction under existing OCGA § 16-10-24(a) no longer contains the element of
violence as does the offense of felony obstruction under existing OCGA § 16-10-24(b)." (Citations
omitted.) Stryker v. State, 297 Ga.App. 493, 495, 677 S.E.2d 680 (2009). "[T]he [misdemeanor
obstruction] statute was made purposefully broad to cover actions which might not be otherwise
unlawful, but which obstructed or hindered law enforcement officers in carrying out their duties. This
does not, however, make any actions which incidentally hinder an officer a crime...." Hudson, 135
Ga.App. at 742, 218 S.E.2d 905 (noting the requirement that the conduct must be knowing and
wilful). "Certainly the assertion of one's constitutional rights cannot be an obstruction of an officer, or
every assertion of such rights would lead to obstruction charges." Ballew v. State, 245 Ga.App. 842,
843(1), 538 S.E.2d 902 (2000), disapproved in part on other grounds, Stryker, 297 Ga.App. at 495 n.
1, 677 S.E.2d 680.
Although we have held that words alone can constitute obstruction, Stryker, 297 Ga. App. at 495,
677 S.E.2d 680, we have found no case upholding an obstruction conviction based solely upon a
defendant's act of speaking to, remonstrating with, or even criticizing an officer during the
performance of his duties. Indeed, in the opinions upholding misdemeanor obstruction convictions
based on a defendant's words, the defendant: (1) instructed another person to remove evidence
from the crime scene, id. at 493, 677 S.E.2d 680; (2) remonstrated so loudly that she interfered with
an officer's interview of individuals who had reported a crime, despite the officer's instruction that she
leave the scene, Carter v. State, 222 Ga.App. 397, 397-398(1), 474 S.E.2d 228 (1996); (3)
deliberately misled the officer about his identity, Wilson v. State, 261 Ga.App. 576, 578(2), 583
S.E.2d 243 (2003); Herren v. State, 201 Ga.App. 509, 510(1), 411 S.E.2d 552 (1991); (4) wilfully lied
about the whereabouts of the subject of a bench warrant an officer was attempting to serve, Hudson,
135 Ga.App. at 742-743(3); (5) wilfully lied to an officer, who was trying to execute an arrest warrant,
about the present location of the arrestee, Duke v. State, 205 Ga.App. 689, 423 S.E.2d 427 (1992);
and (6) deliberately misled the first responding officer about his role in a car wreck, Wells v. State,
297 Ga.App. 153, 154(1), 676 S.E.2d 821 (2009).
Other cases upholding misdemeanor obstruction convictions involve words plus something more.
See, e.g., Steillman v. State, 295 Ga.App. 778, 781(2), 673 S.E.2d 286 (2009) (using fighting words
and resisting arrest for disorderly conduct; involving felony and misdemeanor obstruction); Pinchon
v. State, 237 Ga.App. 675-676, 516 S.E.2d 537 (1999) (arguing with police officer, refusing to
comply with instruction to take written citation, and attempting to walk away when officer told
defendant she was under arrest); Leckie v. State, 231 Ga.App. 760-761, 500 S.E.2d 627 (1998)
(after being advised he was under arrest for disorderly conduct, defendant announced he was not
going to jail, purposefully turned away from the officer and attempted to avoid being handcuffed).
Harris did not refuse to comply with an officer's directive or command. No officer ever asked to enter
his house. No officer ever asked him to produce the child. Harris was not threatening or violent. The
audio recording demonstrates that Harris did not raise his voice, although the arresting officer *459
raised his. The entire incident lasted 95 seconds.

We need not reach the legal merits of the proposition that the conviction can be sustained on the
basis that Harris asked the officers to leave or that he should have allowed the officers into the
house. The audio recording shows that there was never any mention of entry into Harris's house
without his consent.
The audio recording establishes that the officers made clear at the time of the arrest that it was for
refusing to answer questions about the child. The officers presented Harris with a choice between
answering their questions or being arrested for obstruction. Harris was arrested for peaceably
asserting his constitutional rights as he understood those rights. That cannot be obstruction. Ballew,
supra.
Harris's single two-word response "What child?" cannot salvage this conviction. We note that,
notwithstanding the testimony of the officers who appeared at trial, the audio recording establishes
that Harris asked this question only once. See Johnson, 299 Ga. App. at 474, 682 S.E.2d 601. The
question cannot be deemed obstruction. It did not in fact deceive the officers; DFACS had already
informed them that there was a child. It did not materially expand the 95-second exchange. An
officer immediately responded, "the ten-day old," and the discussion turned to the officers' rejection
of Harris's request that they leave.
There is no merit to the dissent's suggestion that the question caused the officers to be "deceived
about ... the welfare of the child" so that they "could not leave without verifying that the child was
alive and well." Their assignment was to take the child "into protective custody."
We find that Harris's "conduct does not rise to the level of obstruction as a matter of law"; because
we have so found, his conviction cannot stand. Beckom v. State, 286 Ga.App. 38, 41(2), 648 S.E.2d
656 (2007) (evidence that defendant was slow to come to the door, was verbally abusive, and told
officers that she had no knowledge of a juvenile who was actually in her home was insufficient to
support conviction). See also Jackson, supra, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. We
therefore reverse.
2. Given the reversal, we do not reach Harris's other enumeration of error.
Judgment reversed.
BARNES, P.J., PHIPPS, P.J., and MIKELL, P.J., concur.
ANDREWS, DILLARD and BOGGS, JJ., dissent.
ANDREWS, Judge, dissenting.
Because the evidence before the jury was that officers were lawfully discharging their duties when
they were sent by DFCS to check on the welfare of the child, and because Harris impeded them in

this lawful discharge of their duties when he pretended that he did not know to what child they were
referring, the jury was authorized to find Harris guilty of misdemeanor obstruction of an officer.
Accordingly, I respectfully dissent.
The transcript shows that a DFCS investigator went with officers from the Crimes Against Children
Unit to the home of Kayla Bagwell who had a current case with DFCS and two children already in
protective custody. Harris was identified as the father of all three children and had recently been
arrested for aggravated assault against Bagwell. At trial, the officer explained that his division
worked with DFCS and carried out "child welfare checks" for DFCS whenever there was any reason
to believe that "a child is not being properly cared for." The officer stated that the complaint could
come from anywhere and their unit was responsible for checking on the child.
Here, DFCS requested the welfare check on the newborn C.H. because of the ongoing case in
which the two older children were already in protective custody. When asked whether officers
brought court orders or warrants with them when doing child welfare checks, the response was, "No,
sir; we don't need it."
The officer testified: "We didn't even necessarily have to enter into the residence if he would have
brought the child out to us, but *460 he every time the child question would come up, he would say,
"What child?" and "I don't know who you're talking about." Although Harris tried to argue to the jury
that he was confused about which child of his the officers meant when they asked the question, the
transcript shows that after he was arrested, Harris stated, "Okay, my child's inside the house." The
officer responded: "See how easy that was?" Harris also stated at trial: "I knew who they were asking
about, but I was not going to answer the question." Further, the audiotape shows that an officer
responded "the ten-day old" when Harris asked "what child?"
Because this is an appeal from a jury verdict, we must look to the evidence before the jury and
determine whether a rational trier of fact could have found beyond a reasonable doubt that the
officers were in the lawful discharge of their duties when they went to Harris's house to inquire about
the welfare of the child. The officers' undisputed testimony was that DFCS may, during an open and
continuing deprivation case, conduct "child welfare checks" at the home. When asked whether
officers needed any court order, the response was that they did not. The jury was charged on the law
of obstruction and told "[w]hether or not the actions of the defendant did hinder or impede the officers
from carrying out their assigned duties is for you, the members of the jury to decide."
The jury found Harris guilty and there was more than sufficient evidence to support the verdict. There
was no evidence presented to the jury that officers did not have a right to conduct a welfare check on
the child pursuant to an open deprivation case. Harris admitted that he deliberately refused to
answer their questions about the welfare of his child. Accordingly, a rational trier of fact was
authorized to conclude that the officers were in the lawful discharge of their duties when they went to
Harris's house to inquire about the child, and that he impeded them in their discharge of those
duties. See English v. State, 257 Ga.App. 741, 743, 572 S.E.2d 86 (2002) (affirming that defendant
was guilty of obstruction even though defendant claimed that officer was on private property and
officer stated that he was not; it was for the jury to resolve conflicts in the evidence and reach a
determination as to the facts).

Further, there is no issue raised that Harris was somehow convicted of obstruction because he
refused to let officers enter his house. The audiotape of the entire incident leading up to Harris's
arrest was played for the jury and shows that there was never any mention of an entry into Harris's
house without his consent. Officers were clear that the arrest was for refusing to answer questions
about the child. Harris acknowledges this in his brief when he states that the "core" of the
prosecution's case is the accusation that he obstructed officers by failing to answer their questions
about the whereabouts of the child and her mother. More importantly, Harris himself attempted to
bring out in cross-examination that officers never asked permission to come in the house, but rather
arrested him because he refused to cooperate in the investigation into the welfare of the child. The
audiotape confirms this, with the officer telling Harris that he is arresting him because he would not
answer the questions. Harris's statement at trial was that officers "were absolutely convinced that I
was going to talk to them because they were going to make me. I just wouldn't talk. That's it."
The majority holds that Harris cannot be charged with obstruction for responding "what child" when
officers asked him about the baby because "[i]t did not in fact deceive [them, nor did it] materially
expand the 95-second exchange." The majority does not cite to any authority, factual or legal, for this
statement. Of course the officers were not deceived into believing that there was no child; DFCS had
already informed them that there was a child. What they were deceived about was the welfare of the
child. By professing to have no knowledge of any child, Harris was not only obstructing a lawful
investigation but, in addition, his response raised valid concerns about the child's welfare. As
previously stated, Harris had a history of family violence. At that point, the officers could not leave
without verifying that the child was alive and well.
Beckom v. State, 286 Ga.App. 38, 648 S.E.2d 656 (2007), the only authority cited by *461 the
majority in reaching its holding, is not on point. In that case, this Court held that there was no
authority for the State's
proposition that an individual's failure to answer the phone and failure to answer a knock on the door
constitutes obstruction under OCGA § 16-10-24(a), where there is no evidence that the individual knew of an
on-going investigation, and certainly no evidence that the individual was attempting "knowingly and willfully" to
impede such an investigation.
Id. at 42, 648 S.E.2d 656.
In this case it is undisputed that Harris knew of an ongoing investigation as to the welfare of his
children and the family violence issue and there is undisputed evidence, his own admission, that he
lied to the officers. See Wells v. State, 297 Ga.App. 153, 157, 676 S.E.2d 821 (2009) (finding
obstruction of a law enforcement officer by giving misleading information to police officer responding
to accident); Duke v. State, 205 Ga.App. 689, 690, 423 S.E.2d 427 (1992) (The trial court was
authorized to find that appellant's lie as to whether the arrestee was present in her home actually
hindered and obstructed the officers in their efforts to make the arrest.).
"Whether a defendant's actions actually hindered or impeded an officer is a decision for the trier of
fact." Williams v. State, 289 Ga.App. 402, 403, 657 S.E.2d 556 (2008). Accordingly, the trial court did
not err in denying Harris's motion for directed verdict and the judgment should be affirmed.

I am authorized to state that Judge DILLARD and Judge BOGGS join in this dissent.
MOTHER’S LIFESTYLE ISN’T AN ISSUE AS LONG AS IT DOESN’T EFFECT THE CHILD’S SAFETY
In Re EC 609 S.E.2d 381 (2004)
271 Ga.App. 133
In the Interest of E.C. et al., children.
No. A04A2320.
December 16, 2004.
“Assuming that the mother's relationship with Martin should factor into the juvenile court's analysis, it
should not be a determining factor unless it is shown that the children have been or might be harmed
in some manner by their mother's lifestyle.[13] Here, DFCS made no effort whatsoever to
demonstrate that the children are deprived, much less that such deprivation results from the mother's
lifestyle. Given the lack of evidence that the children are deprived, the juvenile court erred in
removing the children from their mother's custody.[14]”
[13] See In the Interest of R.E.W., 220 Ga.App. 861, 863, 471 S.E.2d 6 (1996) (father's
homosexuality did not merit restrictive visitation absent evidence that child was exposed to father's
conduct in a manner that is harmful).
[14] See In the Interest of E.M., supra at 281, 590 S.E.2d 241; In the Interest of C.D.E., supra at 761-
762, 766-767, 546 S.E.2d 837.
In re Gault
387 U.S. 1
In re Gault (No. 116)
Argued: December 6, 1966
Decided: May 15, 1967
99 Ariz. 181, 407 P.2d 760, reversed and remanded.
 Syllabus
 Opinion, Fortas
 Concurrence, Black
 Concurrence, White
 CDInPart, Harlan
 Dissent, Stewart

Syllabus
Appellants' 15-year-old son, Gerald Gault, was taken into custody as the result of a complaint that
he had made lewd telephone calls. After hearings before a juvenile court judge, Gerald was ordered
committed to the State Industrial School as a juvenile delinquent until he should reach majority.
Appellants brought a habeas corpus action in the state courts to challenge the constitutionality of
the Arizona Juvenile Code and the procedure actually used in Gerald's case, on the ground of denial
of various procedural due process rights. The State Supreme Court affirmed dismissal of the writ.
Agreeing that the constitutional guarantee of due process applies to proceedings in which juveniles
are charged as delinquents, the court held that the Arizona Juvenile Code impliedly includes the
requirements of due process in delinquency proceedings, and that such due process requirements
were not offended by the procedure leading to Gerald's commitment.
Held:
1. Kent v. United States, 383 U.S. 541, 562 (1966), held "that the [waiver] hearing must measure
up to the essentials of due process and fair treatment." This view is reiterated, here in connection
with a juvenile court adjudication of "delinquency," as a requirement which is part of the Due
Process Clause of the Fourteenth Amendment of our Constitution. The holding in this case relates
only to the adjudicatory stage of the juvenile process, where commitment to a state institution may
follow. When proceedings may result in incarceration in an institution of [p2] confinement, "it would
be extraordinary if our Constitution did not require the procedural regularity and exercise of care
implied in the phrase ‘due process.'" Pp. 12-31.
2. Due process requires, in such proceedings, that adequate written notice be afforded the child and
his parents or guardian. Such notice must inform them "of the specific issues that they must meet,"
and must be given "at the earliest practicable time, and, in any event, sufficiently in advance of the
hearing to permit preparation." Notice here was neither timely nor adequately specific, nor was
there waiver of the right to constitutionally adequate notice. Pp. 31-34.
3. In such proceedings, the child and his parents must be advised of their right to be represented by
counsel and, if they are unable to afford counsel, that counsel will be appointed to represent the
child. Mrs. Gault's statement at the habeas corpus hearing that she had known she could employ
counsel, is not "an ‘intentional relinquishment or abandonment' of a fully known right." Pp. 34-42.
4. The constitutional privilege against self-incrimination is applicable in such proceedings:
an admission by the juvenile may [not] be used against him in the absence of clear and unequivocal
evidence that the admission was made with knowledge that he was not obliged to speak, and would
not be penalized for remaining silent.
[T]he availability of the privilege does not turn upon the type of proceeding in which its protection is
invoked, but upon the nature of the statement or admission and the exposure which it invites. . . .
[J]uvenile proceedings to determine "delinquency," which may lead to commitment to a state
institution, must be regarded as "criminal" for purposes of the privilege against self-incrimination.

Furthermore, experience has shown that "admissions and confessions by juveniles require special
caution" as to their reliability and voluntariness, and "[i]t would indeed be surprising if the privilege
against self-incrimination were available to hardened criminals, but not to children."
[S]pecial problems may arise with respect to waiver of the privilege by or on behalf of children, and
. . . there may well be some differences in technique -- but not in principle -- depending upon the
age of the child and the presence and competence of parents. . . . If counsel was not present for
some permissible reason when an admission was obtained, the greatest care must be taken to
assure that the admission was voluntary. . . .
Gerald's admissions did not [p3] measure up to these standards, and could not properly be used as
a basis for the judgment against him. Pp. 44-56.
5. Absent a valid confession, a juvenile in such proceedings must be afforded the rights of
confrontation and sworn testimony of witnesses available for cross-examination. Pp. 56-57.
6. Other questions raised by appellants, including the absence of provision for appellate review of a
delinquency adjudication, and a transcript of the proceedings, are not ruled upon. Pp. 57-58.
TOP
Opinion
FORTAS, J., Opinion of the Court
MR. JUSTICE FORTAS delivered the opinion of the Court.
This is an appeal under 28 U.S.C. § 1257(2) from a judgment of the Supreme Court of Arizona
affirming the[p4] dismissal of a petition for a writ of habeas corpus. 99 Ariz. 181, 407 P.2d 760
(1965). The petition sought the release of Gerald Francis Gault, appellants' 15-year-old son, who
had been committed as a juvenile delinquent to the State Industrial School by the Juvenile Court of
Gila County, Arizona. The Supreme Court of Arizona affirmed dismissal of the writ against various
arguments which included an attack upon the constitutionality of the Arizona Juvenile Code because
of its alleged denial of procedural due process rights to juveniles charged with being "delinquents."
The court agreed that the constitutional guarantee of due process of law is applicable in such
proceedings. It held that Arizona's Juvenile Code is to be read as "impliedly" implementing the "due
process concept." It then proceeded to identify and describe "the particular elements which
constitute due process in a juvenile hearing." It concluded that the proceedings ending in
commitment of Gerald Gault did not offend those requirements. We do not agree, and we reverse.
We begin with a statement of the facts.
I

On Monday, June 8, 1964, at about 10 a.m., Gerald Francis Gault and a friend, Ronald Lewis, were
taken into custody by the Sheriff of Gila County. Gerald was then still subject to a six months'
probation order which had been entered on February 25, 1964, as a result of his having been in the
company of another boy who had stolen a wallet from a lady's purse. The police action on June 8
was taken as the result of a verbal complaint by a neighbor of the boys, Mrs. Cook, about a
telephone call made to her in which the caller or callers made lewd or indecent remarks. It will
suffice for purposes of this opinion to say that the remarks or questions put to her were of the
irritatingly offensive, adolescent, sex variety. [p5]
At the time Gerald was picked up, his mother and father were both at work. No notice that Gerald
was being taken into custody was left at the home. No other steps were taken to advise them that
their son had, in effect, been arrested. Gerald was taken to the Children's Detention Home. When
his mother arrived home at about 6 o'clock, Gerald was not there. Gerald's older brother was sent to
look for him at the trailer home of the Lewis family. He apparently learned then that Gerald was in
custody. He so informed his mother. The two of them went to the Detention Home. The deputy
probation officer, Flagg, who was also superintendent of the Detention Home, told Mrs. Gault "why
Jerry was there," and said that a hearing would be held in Juvenile Court at 3 o'clock the following
day, June 9.
Officer Flagg filed a petition with the court on the hearing day, June 9, 1964. It was not served on
the Gaults. Indeed, none of them saw this petition until the habeas corpus hearing on August 17,
1964. The petition was entirely formal. It made no reference to any factual basis for the judicial
action which it initiated. It recited only that
said minor is under the age of eighteen years, and is in need of the protection of this Honorable
Court; [and that] said minor is a delinquent minor.
It prayed for a hearing and an order regarding "the care and custody of said minor." Officer Flagg
executed a formal affidavit in support of the petition.
On June 9, Gerald, his mother, his older brother, and Probation Officers Flagg and Henderson
appeared before the Juvenile Judge in chambers. Gerald's father was not there. He was at work out
of the city. Mrs. Cook, the complainant, was not there. No one was sworn at this hearing. No
transcript or recording was made. No memorandum or record of the substance of the proceedings
was prepared. Our information about the proceedings [p6] and the subsequent hearing on June 15,
derives entirely from the testimony of the Juvenile Court Judge, [n1]
Mr. and Mrs. Gault and Officer
Flagg at the habeas corpus proceeding conducted two months later. From this, it appears that, at
the June 9 hearing, Gerald was questioned by the judge about the telephone call. There was conflict
as to what he said. His mother recalled that Gerald said he only dialed Mrs. Cook's number and
handed the telephone to his friend, Ronald. Officer Flagg recalled that Gerald had admitted making
the lewd remarks. Judge McGhee testified that Gerald "admitted making one of these [lewd]
statements." At the conclusion of the hearing, the judge said he would "think about it." Gerald was
taken back to the Detention Home. He was not sent to his own home with his parents. On June 11

or 12, after having been detained since June 8, Gerald was released and driven home. [n2]
There is no
explanation in the record as to why he was kept in the Detention Home or why he was released. At
5 p.m. on the day of Gerald's release, Mrs. Gault received a note signed by Officer Flagg. It was on
plain paper, not letterhead. Its entire text was as follows:
Mrs. Gault:
Judge McGHEE has set Monday June 15, 1964 at 11:00 A.M. as the date and time for further
Hearings on Gerald's delinquency
/s/Flagg
[p7]
At the appointed time on Monday, June 15, Gerald, his father and mother, Ronald Lewis and his
father, and Officers Flagg and Henderson were present before Judge McGhee. Witnesses at the
habeas corpus proceeding differed in their recollections of Gerald's testimony at the June 15
hearing. Mr. and Mrs. Gault recalled that Gerald again testified that he had only dialed the number,
and that the other boy had made the remarks. Officer Flagg agreed that, at this hearing Gerald did
not admit making the lewd remarks. [n3]
But Judge McGhee recalled that "there was some admission
again of some of the lewd statements. He he didn't admit any of the more serious lewd
statements." [n4]
Again, the complainant, Mrs. Cook, was not present. Mrs. Gault asked that Mrs.
Cook be present "so she could see which boy that done the talking, the dirty talking over the
phone." The Juvenile Judge said "she didn't have to be present at that hearing." The judge did not
speak to Mrs. Cook or communicate with her at any time. Probation Officer Flagg had talked to her
once -- over the telephone on June 9.
At this June 15 hearing a "referral report" made by the probation officers was filed with the court,
although not disclosed to Gerald or his parents. This listed the charge as "Lewd Phone Calls." At the
conclusion of the hearing, the judge committed Gerald as a juvenile delinquent to the State
Industrial School "for the period of his minority [that is, until 21], unless sooner discharged [p8] by
due process of law." An order to that effect was entered. It recites that "after a full hearing and due
deliberation the Court finds that said minor is a delinquent child, and that said minor is of the age of
15 years."
No appeal is permitted by Arizona law in juvenile cases. On August 3, 1964, a petition for a writ of
habeas corpus was filed with the Supreme Court of Arizona and referred by it to the Superior Court
for hearing.
At the habeas corpus hearing on August 17, Judge McGhee was vigorously cross-examined as to the
basis for his actions. He testified that he had taken into account the fact that Gerald was on
probation. He was asked "under what section of . . . the code you found the boy delinquent?"
His answer is set forth in the margin. [n5]
In substance, he concluded that Gerald came within ARS
§ 201-6(a), which specifies that a "delinquent child" includes one "who has violated a law of the

state or an ordinance or regulation of a political subdivision thereof." The law which Gerald was
found to have violated is ARS § 13-377. This section of the Arizona Criminal Code provides that a
person who "in the presence or hearing of any woman or child . . . uses vulgar, abusive or obscene
language, is guilty of a misdemeanor. . . ." The penalty specified in the Criminal Code, which
would [p9] apply to an adult, is $5 to $50, or imprisonment for not more than two months. The
judge also testified that he acted under ARS § 8-201-6(d), which includes in the definition of a
"delinquent child" one who, as the judge phrased it, is "habitually involved in immoral matters." [n6]
Asked about the basis for his conclusion that Gerald was "habitually involved in immoral matters,"
the judge testified, somewhat vaguely, that two years earlier, on July 2, 1962, a "referral" was
made concerning Gerald, "where the boy had stolen a baseball glove from another boy and lied to
the Police Department about it." The judge said there was "no hearing," and "no accusation" relating
to this incident, "because of lack of material foundation." But it seems to have remained in his mind
as a relevant factor. The judge also testified that Gerald had admitted making other nuisance phone
calls in the past, which, as the judge recalled the boy's testimony, were "silly calls, or funny calls, or
something like that."
The Superior Court dismissed the writ, and appellants sought review in the Arizona Supreme Court.
That court stated that it considered appellants' assignments of error as urging (1) that the Juvenile
Code, ARS § 8-201 to § 8-23, is unconstitutional because it does not require that parents and
children be apprised of the specific charges, does not require proper notice of a hearing, and does
not provide for an appeal, and (2) that the proceedings [p10] and order relating to Gerald
constituted a denial of due process of law because of the absence of adequate notice of the charge
and the hearing; failure to notify appellants of certain constitutional rights including the rights to
counsel and to confrontation, and the privilege against self-incrimination; the use of unsworn
hearsay testimony, and the failure to make a record of the proceedings. Appellants further asserted
that it was error for the Juvenile Court to remove Gerald from the custody of his parents without a
showing and finding of their unsuitability, and alleged a miscellany of other errors under state law.
The Supreme Court handed down an elaborate and wide-ranging opinion affirming dismissal of the
writ and stating the court's conclusions as to the issues raised by appellants and other aspects of
the juvenile process. In their jurisdictional statement and brief in this Court, appellants do not urge
upon us all of the points passed upon by the Supreme Court of Arizona. They urge that we hold the
Juvenile Code of Arizona invalid on its face or as applied in this case because, contrary to the Due
Process Clause of the Fourteenth Amendment, the juvenile is taken from the custody of his parents
and committed to a state institution pursuant to proceedings in which the Juvenile Court has
virtually unlimited discretion, and in which the following basic rights are denied:
1. Notice of the charges;
2. Right to counsel;
3. Right to confrontation and cross-examination;

4. Privilege against self-incrimination;
5. Right to a transcript of the proceedings; and
6. Right to appellate review.
We shall not consider other issues which were passed upon by the Supreme Court of Arizona. We
emphasize[p11] that we indicate no opinion as to whether the decision of that court with respect to
such other issues does or does not conflict with requirements of the Federal Constitution. [n7]
[p12]
II
The Supreme Court of Arizona held that due process of law is requisite to the constitutional validity
of proceedings in which a court reaches the conclusion that a juvenile has been at fault, has
engaged in conduct prohibited by law, or has otherwise misbehaved, with the consequence that he
is committed to an institution in which his freedom is curtailed. This conclusion is in accord with the
decisions of a number of courts under both federal and state constitutions. [n8]
This Court has not heretofore decided the precise question. In Kent v. United States, 383 U.S.
541 (1966), we considered the requirements for a valid waiver of the "exclusive" jurisdiction of the
Juvenile Court of the District of Columbia so that a juvenile could be tried in the adult criminal court
of the District. Although our decision turned upon the language of the statute, we emphasized the
necessity that "the basic requirements of due process and fairness" be satisfied in such
proceedings. [n9]
Haley v. Ohio, 332 U.S. 596 (1948), involved the admissibility, in a state criminal
court of general jurisdiction, of a confession by a 15-year-old boy. The Court held that the
Fourteenth Amendment applied to [p13] prohibit the use of the coerced confession. MR. JUSTICE
DOUGLAS said, "Neither man nor child can be allowed to stand condemned by methods which flout
constitutional requirements of due process of law." [n10]
To the same effect is Gallegos v.
Colorado, 370 U.S. 49 (1962). Accordingly, while these cases relate only to restricted aspects of the
subject, they unmistakably indicate that, whatever may be their precise impact, neither the
Fourteenth Amendment nor the Bill of Rights is for adults alone.
We do not in this opinion consider the impact of these constitutional provisions upon the totality of
the relationship of the juvenile and the state. We do not even consider the entire process relating to
juvenile "delinquents." For example, we are not here concerned with the procedures or
constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our
attention to the post-adjudicative or dispositional process. See note 48, infra. We consider only the
problems presented to us by this case. These relate to the proceedings by which a determination is
made as to whether a juvenile is a "delinquent" as a result of alleged misconduct on his part, with
the consequence that he may be committed to a state institution. As to these proceedings, there
appears to be little current dissent from the proposition that the Due Process Clause has a role to
play. [n11]
The problem is to ascertain [p14] the precise impact of the due process requirement upon
such proceedings.

From the inception of the juvenile court system, wide differences have been tolerated -- indeed
insisted upon -- between the procedural rights accorded to adults and those of juveniles. In
practically all jurisdictions, there are rights granted to adults which are withheld from juveniles. In
addition to the specific problems involved in the present case, for example, it has been held that the
juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury. [n12]
It is
frequent practice that rules governing the arrest and interrogation of adults by the police are not
observed in the case of juveniles. [n13]
The history and theory underlying this development are well known, but a recapitulation is
necessary for purposes of this opinion. The Juvenile Court movement began in this country at the
end of the last century. From the juvenile court statute adopted in Illinois in 1899, the system has
spread to every State in the Union, the District of Columbia, and Puerto Rico. [n14]
The
constitutionality [p15] of Juvenile Court laws has been sustained in over 40 jurisdictions against a
variety of attacks. [n15]
The early reformers were appalled by adult procedures and penalties, and by the fact that children
could be given long prison sentences and mixed in jails with hardened criminals. They were
profoundly convinced that society's duty to the child could not be confined by the concept of justice
alone. They believed that society's role was not to ascertain whether the child was "guilty" or
"innocent," but "What is he, how has he become what he is, and what had best be done in his
interest and in the interest of the state to save him from a downward career." [n16]
The child --
essentially good, as they saw it -- was to be made "to feel that he is the object of [the state's] care
and solicitude," [n17]
not that he was under arrest or on trial. The rules of criminal procedure were
therefore altogether inapplicable. The apparent rigidities, technicalities, and harshness which they
observed in both substantive and procedural criminal law were therefore to be discarded. The idea
of crime and punishment was to be abandoned. The child was [p16] to be "treated" and
"rehabilitated," and the procedures, from apprehension through institutionalization, were to be
"clinical", rather than punitive.
These results were to be achieved, without coming to conceptual and constitutional grief, by
insisting that the proceedings were not adversary, but that the state was proceeding as parens
patriae. [n18]
The Latin phrase proved to be a great help to those who sought to rationalize the
exclusion of juveniles from the constitutional scheme; but its meaning is murky, and its historic
credentials are of dubious relevance. The phrase was taken from chancery practice, where, however,
it was used to describe the power of the state to act in loco parentisfor the purpose of protecting the
property interests and the person of the child. [n19]
But there is no trace of the doctrine in the history
of criminal jurisprudence. At common law, children under seven were considered incapable of
possessing criminal intent. Beyond that age, they were subjected to arrest, trial, and in theory to
punishment like adult offenders. [n20]
In these old days, [p17] the state was not deemed to have
authority to accord them fewer procedural rights than adults.
The right of the state, as parens patriae, to deny to the child procedural rights available to his elders
was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty, but to

Williams v. state

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