In Re Jas

650 S.E.2d 788
CourtCourt of Appeals of Georgia
DecidedAugust 7, 2007
DocketA07A1056, A07A1057
StatusPublished

This text of 650 S.E.2d 788 (In Re Jas) 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 Jas, 650 S.E.2d 788 (Ga. Ct. App. 2007).

Opinion

650 S.E.2d 788 (2007)

In The Interest of J.A.S., a child(two cases).

Nos. A07A1056, A07A1057.

Court of Appeals of Georgia.

August 7, 2007.

*789 Avrett, Ponder & Withrock, Dalton, William B. Barnwell, for appellant(case no. A07A1056).

Joshua J. Smith, for appellant(case no. A07A1057).

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Bruce A. Kling, for appellee.

MILLER, Judge.

In Case Nos. A07A1056 and A07A1057, J.A.S.'s biological mother and father, respectively, appeal from an order of the juvenile court terminating their respective parental rights. In their separate appeals, both the mother and the father assert that the evidence was insufficient to support the juvenile court's decision. The father also asserts as error the juvenile court's refusal to continue the termination hearing as to him until he could obtain counsel. Finding that the juvenile court's order is supported by clear and convincing evidence, and that the father has *790 failed to demonstrate any harm caused him by the absence of counsel, we affirm.

In considering a challenge to the sufficiency of the evidence in a termination of parental rights case, the question is whether "any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost." In the Interest of C.M., 275 Ga.App. 719, 621 S.E.2d 815 (2005). In making that determination, this Court "review[s] the evidence in a light most favorable to the lower court's judgments" and we "neither weigh [] evidence nor determine [] the credibility of witnesses; rather, we defer to the trial court's fact-finding and affirm unless the appellate standard is not met." (Citations omitted.) Id. at 719-720, 621 S.E.2d 815. Additionally, the fact that a parent is not represented by counsel at a termination hearing constitutes grounds for reversal only where the parent can show he suffered harm — i.e., "how he would have been successful had he been represented by counsel." In the Interest of M.S., 279 Ga.App. 254, 261-262(1), 630 S.E.2d 856 (2006).

Viewed in the light most favorable to the juvenile court's determination, the record shows that the Whitfield County Department of Family and Children Services, acting on behalf of the Georgia Department of Human Resources (hereinafter "the Department"), opened a case file on J.A.S. in 2003 based upon his mother's drug use and the Department's inability to locate his father. In May 2005, after the mother failed to complete a drug treatment program and continued to test positive for methamphetamine, the Department filed a deprivation petition in the juvenile court, seeking temporary custody of J.A.S.[1]

Both parents were represented by counsel at the May 26, 2005 deprivation hearing, and both consented to an order finding J.A.S. to be deprived and placing him in the temporary custody of the Department. Neither parent appealed this order.

The Department developed separate reunification plans for the mother and the father. Each parent's plan required them to submit to random drug screens; remain drug free for six consecutive months; attend and successfully complete parenting classes; obtain and maintain a source of income for a minimum of six months; obtain and maintain stable, clean, and safe housing; pay child support; complete a psychological evaluation and comply with all of its recommendations; and maintain consistent and supervised visitation with J.A.S. The mother's plan also required her to obtain a substance abuse assessment and follow all treatment recommendations. The father was further required to cooperate with an anger management inventory and follow all of its recommendations.

Each of the reunification plans was incorporated into a supplemental order issued by the juvenile court on June 28, 2005. That order further provided that the Department had reviewed the goals of the reunification plans with each parent, and ordered both the mother and the father to pay a minimum of $50 per week in child support.

After the case was reviewed by a citizen review panel, the juvenile court entered a further supplemental order finding that J.A.S. should remain in foster care and incorporating changes into each parent's reunification plan, as recommended by the citizen review panel. On April 27, 2006 the Department filed a petition for the termination of both the parents' parental rights, based upon the fact that neither had completed his or her case plan.

While both parents were present at the June 22, 2006 hearing on the termination petition, only the mother was represented by counsel. Despite being given six weeks notice of the hearing, as well as instructions on how to apply for appointed counsel, the father appeared without a lawyer. The father originally told the juvenile court that he had retained an attorney, but subsequently admitted his failure to obtain counsel, and requested a continuance to give him the opportunity *791 to retain a lawyer or have one appointed. Citing the notice given to the father, as well as the instructions he received on obtaining appointed counsel, the juvenile court declined the requested continuance.

On June 26, 2006, the juvenile court issued an order terminating the parental rights of both parents, finding that neither parent had made progress toward remedying the causes of the child's deprivation and that neither parent had complied with the reunification plan.

Case Nos. A07A1056 and A07A1057

Both the mother and the father argue that there was insufficient evidence to support the juvenile court's decision to terminate their parental rights. We disagree.

1. The Georgia Code sets forth a two-step process to be used in termination of parental rights cases. First, the trial court determines "whether there is present clear and convincing evidence of parental misconduct or inability." OCGA § 15-11-94(a). Such evidence must show that: (1) the child is deprived; (2) the deprivation results from a lack of proper parental care or control; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. See OCGA § 15-11-94(b)(4)(A)(i)-(iv).

(a.) With respect to the first factor, the juvenile court's order of May 26, 2005 contained a specific finding that J.A.S. was deprived. Neither of the parents appealed that order, and each is therefore bound by the finding of deprivation. See In the Interest of C.R.G., 272 Ga.App. 161, 164, 611 S.E.2d 784 (2005).

(b.) When determining the second factor, whether a child's deprivation results from a lack of parental care and control, in situations where a parent does not have custody of that child

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Bluebook (online)
650 S.E.2d 788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jas-gactapp-2007.