In Re Cm

639 S.E.2d 323
CourtCourt of Appeals of Georgia
DecidedOctober 24, 2006
DocketA06A1812
StatusPublished

This text of 639 S.E.2d 323 (In Re Cm) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Cm, 639 S.E.2d 323 (Ga. Ct. App. 2006).

Opinion

639 S.E.2d 323 (2006)

In the Interest of C.M. et al., children.

No. A06A1812.

Court of Appeals of Georgia.

October 24, 2006.
Reconsideration denied November 21, 2006.

*324 Flint & Connolly, John F. Connolly, Canton, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Charissa A. Ruel, Assistant Attorney General, Susan C. Stanton, Woodstock, for appellee.

*325 BLACKBURN, Presiding Judge.

Following the termination of her parental rights, the mother of C.M. and A.M. appeals, contending that: (1) the evidence was insufficient to support the juvenile court's finding of parental misconduct or inability; (2) the termination was not in the best interests of the children; (3) during the hearing on the mother's motion for new trial, the juvenile court erred in not admitting new evidence from a Department of Family and Children Services ("Department") assessment done after the termination ruling; (4) the juvenile court erred in failing to grant the mother a continuance of the termination hearing due to her family medical emergency; (5) the Department failed to make adequate efforts to find a relative placement for the children; and (6) she received ineffective assistance of counsel at the termination hearing. For the reasons that follow, we affirm.

On appeal, we review the evidence in a light most favorable to the lower court's judgment and determine only whether any rational trier of fact could have found by clear and convincing evidence that the natural parent's right to custody should be terminated. We defer to the juvenile court's factfinding and thus neither weigh the evidence nor evaluate witness credibility.

(Citation and punctuation omitted.) In the Interest of J.K.[1] So viewed, the record shows that C.M., born in December 2000, and A.M., born in August 2002, first came into the custody of the Department under a shelter care order issued in January 2003, due to the mother's drug abuse and failure to protect the children from her stepfather, who molested the mother when she was a child. On January 31, 2003, the Department filed a deprivation petition in the Juvenile Court of Cherokee County, alleging substance abuse, parenting and supervision issues, unstable housing, and lack of employment. In an order dated April 24, 2003, nunc pro tunc February 12, 2003, the juvenile court found the children deprived, placed the children in the custody of the Department for 12 months, and ordered the Department to develop a case plan requiring the mother to undergo substance abuse evaluation, attend parenting classes, maintain stable housing, and obtain stable employment.

The Department prepared a case plan according to the order, and after the mother failed to adequately comply with the case plan, the Department filed a second deprivation petition in November 2003. Following a hearing, the mother consented to a six-month extension of the Department's custody of the children, and the juvenile court ordered the mother to complete her case plan. After continuing to work with the mother, in June 2004, the Department filed a petition to terminate the mother's parental rights. The Department also filed a petition to extend custody, which was granted. After several continuances, due in part to the mother's incarceration for a probation violation due to speeding, a termination hearing was held over two days (one in February 2005, and one in May 2005). At the close of the evidence on the second day, the juvenile court orally ruled from the bench and granted the termination. In November 2005, the juvenile court issued a written order terminating the mother's rights. The mother filed a motion for new trial, which was denied after a hearing, giving rise to this appeal.

1. The mother contends that there was insufficient evidence of parental misconduct or inability, in that she adequately complied with her case plan for reunification. We disagree.

In a termination of parental rights case, OCGA § 15-11-94(a) requires the trial court to consider whether there is clear and convincing evidence of parental misconduct or inability as provided in [OCGA § 15-11-94(b)]. . . . The four criteria that the court must find in order to hold that parental misconduct or inability is shown are: (i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child's status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or *326 is likely to cause serious physical, mental, emotional, or moral harm to the child. In the Interest of J.K., supra, 278 Ga.App. at 566-567(1), 629 S.E.2d 529. We discuss each element of this analysis below.

(a) Finding of Deprivation. Under OCGA § 15-11-2(8), a "deprived child" is

a child who: (A) Is 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; (B) Has been placed for care or adoption in violation of law; (C) Has been abandoned by his or her parents or other legal custodian; or (D) Is without a parent, guardian, or custodian.

(Emphasis supplied.)

Here, C.M. and A.M. were previously deemed deprived in an order which the mother consented to at the time, and the children were not in her custody at the time of the termination proceedings.

[W]here the child is not in custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.

(Emphasis supplied.) OCGA § 15-11-94(b)(4)(C).

With respect to maintaining a parental bond, the evidence showed that outside of the week before the termination hearing, the mother had not visited her children once in the last nine months. Prior to that, the mother's visitation was irregular, often missing visits or needing rescheduling. She failed to give the children their birthday presents and did not make efforts to contact the foster parents, who had custody of the children.

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In the Interest of C. M.
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639 S.E.2d 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cm-gactapp-2006.