SECOND DIVISION MILLER, P. J., HODGES and PIPKIN, JJ.
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December 3, 2021
In the Court of Appeals of Georgia A21A1386. IN THE INTEREST OF A. B., et al., children.
HODGES, Judge.
In August 2019, the juvenile court terminated the mother’s parental rights to
A. B., M. C., and K. B., all minor children.1 We granted the mother’s discretionary
appeal, in which she contends that the juvenile court erred in terminating her parental
rights despite insufficient evidence to show that the children were harmed or were
presently dependent; that the Department of Family and Children Services
(“DFACS”) failed to make reasonable efforts to reunify the family; and that the trial
1 A. B. was born June 19, 2008; M. C. was born February 16, 2011; and K. B. was born June 16, 2016. court erred by allowing the admission of certain testimony.2 For the reasons that
follow, we affirm in part and vacate and remand in part.
“On appeal from a juvenile court’s decision to terminate parental rights, we
review the evidence in the light most favorable to the juvenile court’s ruling and
determine whether any rational trier of fact could have found by clear and convincing
evidence that the parent’s rights should be terminated.” In the Interest of A. B., 346
Ga. App. 2 (815 SE2d 561) (2018).
So viewed, the record shows that the two older children, A. B. and M. C., were
first found dependent because of the mother’s substance abuse, inadequate housing,
and lack of income. They were removed from her care in 2015 and spent about 1 ½
years in foster care in Haralson County. The mother completed residential substance
abuse treatment and regained custody.
In 2017, DFACS in Douglas County removed all three children from their
mother’s care,3 including K. B., who was then a baby. A. B. and M. C.’s school
2 This appeal was initially filed as Case No. A21A0499, but that case was first dismissed because the mother failed to file an appellate brief, then reinstated, then later remanded to the trial court for completion of the record. It has been redocketed as A21A1386. 3 The juvenile court found that the mother took the children to Douglas County in an attempt to avoid an investigation by Haralson County DFACS.
2 contacted DFACS because the older children came to school hungry and unkempt,
with matted hair, and wearing dirty clothes that were inappropriate for the weather.
The mother had left A. B. and M. C. in the care of A. B.’s grandfather, who lived in
a “known drug house.” The mother did not live in that house, but moved from place
to place with K. B., and avoided contact with DFACS. The mother had a history of
substance abuse and had not submitted to drug screens. She also had a history of
domestic violence in the children’s presence with one of the putative fathers. The
juvenile court found that the children were severely neglected and in an unsafe living
environment, and placed them in DFACS custody.
The juvenile court reviewed the children’s cases in early 2018, and, in 2019,
issued orders of adjudication and disposition finding the children dependent.4 The
juvenile court found that the mother had executed a document in 2017 placing the
children in the temporary custody of a woman who lived in a home with a number of
other adults, but not the mother. DFACS was unable to determine exactly who else
lived there. The juvenile court found that A. B. and M. C. were dressed
4 The mother appealed the juvenile court’s 2018 dependency finding, and this Court vacated and remanded that order for further findings of fact and conclusions of law. In the Interest of A. B., 350 Ga. App. 158, 159 (1) (828 SE2d 394) (2019). The juvenile court issued revised orders, which the mother has not appealed.
3 inappropriately for school, that one child had no underwear, that both children had
seasonally inappropriate shoes and socks or shoes that did not fit, and lacked school
supplies. The school purchased all these items for them. Their hair was matted and
they had lice. Even when kept out of school for lice treatment, they returned with nits
in their hair. The school’s health monitor groomed them because the mother testified
that she could not see the nits and needed someone else to remove them. Both older
children had severe eczema consistent with stress and neglect, and one child’s legs
were so swollen the school sought medical attention for her, as the health monitor
was unable to reach the mother. The children made more than 20 trips to the health
monitor, and M. C. was absent so much that her teacher believed it interfered with her
education. The mother was unresponsive when contacted about the children’s
excessive absences, tardies, and grading issues. Also, the older children’s Medicaid
had been allowed to lapse.
The juvenile court found that, at the time of removal, the baby, K. B., was “in
poor condition,” “very sick and in need of medical care,” and that the mother had also
allowed her Medicaid to lapse. The juvenile court found that the mother’s appearance,
behavior, and testimony at the hearing were “consistent with substance abuse.” She
had relapsed and not returned to treatment. It found all three children dependent
4 because of the mother’s chronic neglect, inadequate supervision, and delegation of
parental responsibility to others who failed to provide adequately for the children,
including a failure to provide insurance coverage for all the children and adequate
medical care for K. B.
The juvenile court additionally found that DFACS made reasonable efforts to
prevent the children’s removal and facilitate their return home by providing referrals
for drug screens and family preservation services, which the mother refused.
Although DFACS created a reunification case plan, the mother refused to sign it. The
mother did not appeal these dependency findings, which were based upon hearings
held in early 2018.
The juvenile court next held termination hearings in July 2019. In addition to
testimony about how the children were doing in their respective placements, which
will be discussed more fully below, the juvenile court heard testimony that the mother
refused to review her reunification case plan with DFACS and failed to complete it,
and failed to get required parental fitness, psychological, and substance abuse
assessments. She failed to complete approximately five requested drug screens, but
did complete one, testing positive for THC, methamphetamine, and amphetamines.
The mother also never paid child support, never obtained domestic violence
5 counseling, never provided proof of any income, and never provided proof of stable
housing. The case worker who visited the mother’s home testified that it lacked
running water, had exposed electrical wires, was very cluttered inside and out, and
had a weapon out in the open. When the case worker told the mother that the home
was inappropriate for children, the mother refused to respond. The case worker
testified that, other than inconsistent visits, the mother made no attempt to reunite
with her children.
The juvenile court suspended the mother’s visitation in May 2019, finding that
she had demonstrated disruptive and inappropriate behaviors and appeared to be
under the influence of illegal substances during visits, and that this behavior was
negatively affecting the children. It does not appear from the record that the mother
contested that suspension. However, a therapist testified that, in June and July 2019,
she attempted to set up therapeutic visitations between the mother and her children,
but the mother refused to confirm the visits and said she did not have time to confirm
the visits.
6 The mother did not appear at either of the termination hearing dates, although
an attorney appeared on her behalf. In August 2019, the juvenile court terminated the
mother’s parental rights,5 and we granted the mother’s discretionary appeal.
1. The mother contends that the evidence was insufficient to show that the
children were harmed by their current circumstances. We find no error as to A. B. and
M. C., but must vacate the juvenile court’s judgment as to K. B.
Because the mother did not appeal from the juvenile court’s revised
determinations that the children were dependent, these findings are conclusive and
sufficient to show that at that time, the children were dependent due to the mother’s
lack of proper parental care or control. In the Interest of C. A. B., 347 Ga. App. 474,
476, n. 2 (819 SE2d 916) (2018). Thus, our inquiry examines, in the context of the
mother’s enumeration, whether clear and convincing evidence shows that continued
dependency would harm the children.
The juvenile court terminated the mother’s parental rights pursuant to OCGA
§ 15-11-310 (a) (5), which provides a ground for termination when
5 The juvenile court also terminated the parental rights of three respondent fathers or putative fathers. These fathers are not part of the instant appeal.
7 [a] child is a dependent child6 due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.
In regard to the harm provision of OCGA § 15-11-310 (5) (A) and (B), a
juvenile court
must assess whether a child currently in foster care is likely to suffer serious harm as a result of continued dependency if the child remains indefinitely in foster care, and also the likelihood of harm if the child returns to the custody of the parent, notwithstanding that the [dependency] persists.
(Citation and punctuation omitted; emphasis supplied.) In the Interest of A. S., 339
Ga. App. 875, 881 (3) (794 SE2d 672) (2016); accord In the Interest of E. M. D., 339
Ga. App. 189, 201-202 (II) (B) (793 SE2d 489) (2016).
6 A “dependent child” is a child who “(A) [h]as been abused or neglected and is in need of the protection of the court; (B) [h]as been placed for care or adoption in violation of law; or (C) [i]s without his or her parent, guardian, or legal custodian.” OCGA § 15-11-2 (22).
8 (a) K. B.: The mother argues that the evidence was insufficient to show that K.
B. was harmed by her current living circumstances,7 where she had been placed in a
foster-to-adopt home. The mother also argues that the juvenile court’s order failed to
assess the extent to which instability was specifically harming K. B., and whether she
would be harmed by remaining in foster care “indefinitely.” We are constrained to
agree.
The mother points only to testimony from a social services case manager who
testified that K. B. is “‘doing fantastic’ in her foster home.” The State, however,
points to no evidence or testimony whatsoever regarding K. B. that addresses the
issue of harm, either as it relates to K. B.’s remaining indefinitely in foster care or her
likelihood of harm if returned to the mother. See Interest of A. S., 339 Ga. App. at 881
(3); Interest of E. M. D., 339 Ga. App. at 201-202 (II) (B). The juvenile court’s order
made no factual or legal findings specific to K. B. regarding harm.
“These deficiencies prevent us, in this case, from making an intelligent review
of the mother’s . . . challenges to the sufficiency of the hearing evidence.” (Citation
and punctuation omitted.) Interest of A. B., 350 Ga. App. at 159 (1). Accordingly, we
7 The mother raises no other viable contentions of error related to the juvenile court’s findings pursuant to OCGA § 15-11-310 (5), so we do not address them.
9 vacate the juvenile court’s termination order as to K. B. and remand the matter “with
direction that the juvenile court prepare appropriate findings of fact and conclusions
of law and enter a new judgment, after which another appeal [as to K. B.] may be
made.” Id.
(b) M. C. and A. B.: The mother argues that the evidence was insufficient to
show that A. B. and M. C. would be harmed if returned to her custody or if they
remained indefinitely in foster care,8 and that the juvenile court did not make
appropriate findings as to these children. We disagree.
The mother presented no record citations to evidence supporting these
contentions related to M. C. and A. B. Although Court of Appeals Rule 25 (c) (2) (i)
provides that we need not search for or consider an enumerated error unsupported by
record citations, because of the importance of the issue at hand, we have reviewed the
record and find no merit in the mother’s contentions as to M. C. and A. B.
8 Again, the mother raises no other viable contentions of error related to the juvenile court’s findings pursuant to OCGA § 15-11-310 (5), so we do not address them.
10 M. C. and A. B. had both been placed in the care of Joshua Davis,9 who
testified that he was M. C.’s biological father, although he had not taken a DNA test.10
He is not A. B.’s biological father, but he is on track to adopt her. Both older girls had
expressed a desire to continue living with him because of the security his home
provided.
A licensed professional counselor and play therapist was qualified as an expert
without objection from the mother’s counsel,11 who questioned the expert extensively
about her qualifications. This counselor testified that, when M. C. entered foster care,
she was “stubborn, disobedient, . . . and having temper outbursts and rapid mood
9 A. B. also was living with Davis, although she is not his biological daughter. 10 The juvenile court terminated the parental rights of M. C.’s legal father, who has not appealed. 11 The mother argues that the juvenile court erred in admitting expert testimony from this therapist, whom she contends lacked specialized knowledge, skill, experience and training. The mother cites to a single transcript page in support of her contentions, where the therapist testifies about her education, qualifications and experience. The mother provides no record citations to the specific testimony which she contends the therapist was unqualified to give, and we will not cull the record on her behalf in search of error. Guilford v. Marriott Intl., 296 Ga. App. 503, 504 (675 SE2d 247) (2009); accord Court of Appeals Rule 25 (c) (2) (i). As the mother “provides no record citation to show where this violation allegedly occurred, [she] therefore has failed to show error by the record.” Jones v. State, 318 Ga. App. 342, 348 (3) (a) (iv), n. 5 (733 SE2d 400) (2012).
11 changes.” She was diagnosed with adjustment disorder and mixed disturbance of
emotions and conduct. Since living with her father and in foster care, her behavior has
improved and she has been better able to communicate about her feelings.
The counselor, who was actively treating M. C., testified that, since entering
foster care and then moving in with her father, M. C.’s behavior had improved. She
testified that to continue M. C.’s healing and behavioral improvements, it was
important that she obtain a permanent home, and that she would be psychologically
harmed if she was removed from Davis’s care and returned to her mother because she
had fears of abandonment. The counselor testified that, if M. C. did not achieve a
permanent home, because of her past traumas with her mother, she was likely to
suffer learning issues, emotional problems, personality disorders, low self-esteem,
and low ability to empathize in her future life.
The counselor also testified about A. B., whom she also was treating. The
counselor testified that A. B. had been diagnosed with adjustment disorder and mixed
disturbance of emotions and conduct “[b]ecause of the changes that she’s experienced
throughout her life[,]” and that she also presented with symptoms of trauma and
ADHD. The trauma symptoms included temper outbursts, destructive behavior,
aggression, peer conflict, low self-esteem, and low empathy amounting to “post-
12 traumatic stress symptoms” because of the stressful events she had been exposed to
over the years. She testified that A. B.’s symptoms had improved in foster care with
Davis because of the consistency and security the home offered.
Another licensed professional counselor and trauma assessor also was qualified
as an expert, and the mother’s counsel specifically stated she had no objections to this
qualification.12 She completed a trauma assessment of M. C. This counselor
testified that M. C. was diagnosed with adjustment disorder and disclosed trauma
from witnessing domestic violence while living with her mother. She testified that M.
C. was bonded to Davis and would be harmed if she did not have a permanent,
consistent caregiver, resulting in disruptive behaviors, anxiety, depression, and
abandonment issues. It was in the best interests of M. C., the counselor testified, to
remain with Davis.
This counselor also as to A. B. She testified that during treatment, A. B. had
told her about witnessing multiple incidents of domestic violence involving her
mother and one of the children’s putative fathers. A. B. told the counselor about being
hit in the head with a mallet when the putative father threw it during an argument, and
12 The mother raises no contention of error as to this counselor’s expert testimony.
13 said she was afraid for herself and her sisters. A. B. also told the counselor she had
been threatened with being hit with a belt with spikes on it. She had been diagnosed
with symptoms of post-traumatic stress disorder, and needed ongoing therapy. The
counselor testified that A. B. was bonded to Davis and that her placement in his home
was appropriate.
The children’s guardian ad litem testified that she had visited the girls’
placement with Davis, that they were doing well and showing improvements in their
physical and emotional well-being. She testified that the girls wished to remain in
their current placement, and that it was in their best interests to do so.
The juvenile court, consistent with and relying upon these facts, found that A.
B. and M. C. would be harmed if they were returned to the mother’s neglectful
treatment and if they remained, without any permanency, in foster care. In light of this
extensive evidence and testimony, there was clear and convincing evidence sufficient
to support the juvenile court’s determination pursuant to OCGA § 15-11-310 (a) (5).
See In the Interest of L. P., 339 Ga. App. 651, 656-657 (2) (794 SE2d 252) (2016)
(finding clear and convincing evidence showed harm if children were returned to
parents because of parents’ substance abuse and inability to provide stability, and
14 finding harm if children remained indefinitely in status quo without permanence,
where foster parents wished to adopt them).
OCGA § 15-11-310 (b) provides that, “[i]f any of the statutory grounds for
termination has been met, the court shall then consider whether termination is in a
child’s best interests after considering [certain delineated] factors . . ..” “On appeal,
[the mother] does not challenge the substance of the court’s finding that the
termination of [her] parental rights was in [M. C. and A. B.’s] best interests, and thus,
[s]he has abandoned any such argument on appeal.” (Emphasis omitted.) In the
Interest of C. S., 354 Ga. App. 133, 140 (1) (840 SE2d 475) (2020).
2. The mother argues that there was insufficient evidence of current
dependency because Davis is meeting A. B. and M. C.’s needs.13 See OCGA § 15-11-
310 (a) (5). We do not agree.
While the mother does cite some general legal authority, she cites nothing on
point to her specific contention and makes only conclusory statements unsupported
by a single record citation. This is not the type of meaningful argument contemplated
by our rules. Court of Appeals Rule 25 (c) (2) (“Any enumeration of error that is not
13 The mother does not mention K. B. in this enumeration.
15 supported in the brief by citation of authority or argument may be deemed
abandoned.”).
To the extent that this enumeration has not been abandoned, we find that it
lacks merit because our law provides that “[t]he test in determining termination of
parental rights . . . is whether the mother, ultimately standing alone, is capable of
mastering and utilizing the necessary skills to meet her parenting obligations.”
(Citation and punctuation omitted; emphasis in original.) In the Interest of A. R., 302
Ga. App. 702, 710 (1) (c) (691 SE2d 402) (2010). The mother’s contention that
someone other than herself is caring for her children does not satisfy the requirement
that she meets the test of being able to meet her own parenting obligations “standing
alone.” Id.
3. Citing OCGA §§ 15-11-20214 and 15-11-233 (b) (3), the mother argues that
the trial court erred in terminating her parental rights despite DFACS’s failure to
14 OCGA § 15-11-202 provides, inter alia, that DFCS shall make reasonable efforts to preserve or reunify families: “(1) Prior to the placement of an alleged dependent child in DFCS custody to prevent the need for removing him or her from his or her home; or (2) To eliminate the need for removal and make it possible for a child alleged to be or adjudicated as a dependent child to return safely to his or her home at the earliest possible time.” (Emphasis supplied.) OCGA § 15-11-202 (a).
16 make “reasonable efforts” to reunite the family by providing her with transportation
services for visitation.15 We disagree.
It is clear from the Juvenile Code “that OCGA § 15-11-202 pertains to
dependency proceedings, not termination proceedings. Termination proceedings are
a separate matter and are governed by Article 4 of the Juvenile Code. See OCGA §
15-11-260 et seq.” In the Interest of E. M., 347 Ga. App. 351, 359 (3) (a) (819 SE2d
505) (2018). OCGA § 15-11-233,16 which is within the dependency section of the
Juvenile Code, does not contain a “reasonable efforts” provision. As noted above, the
mother never appealed the dependency findings.
OCGA § 15-11-310 (5), however, contains a “reasonable efforts” requirement
pertaining to termination proceedings, providing, in pertinent part, that the juvenile
15 Although the mother alleges other deficiencies in DFACS’s reunification efforts, she fails to support those contentions with argument or with citation to the record or authority. These contentions have been abandoned. See Court of Appeals Rule 25 (c) (2). 16 OCGA § 15-11-233 (b) (3) provides that “[t]ermination of parental rights may not be in the best interests of a child adjudicated as a dependent child when: . . . DFCS has not provided to the family of such child services deemed necessary for his or her safe return to his or her home, consistent with the specific time frames for the accomplishment of the case plan goals.”
17 court determine whether “reasonable efforts to remedy the circumstances have been
unsuccessful or were not required[.]”
Here, the mother’s case manager testified that she referred the mother to a
service that provided psychological, parental fitness, and substance abuse
assessments, and that no transportation was required as this service offered home
visits. She additionally testified that she referred the mother for drug screens, and the
mother never told her that she needed transportation assistance in that regard. The
case manager did testify that, although DFACS would occasionally provide
transportation to visitations, on two occasions, the mother requested transportation
services the same day as her scheduled visitation with the children, but that, because
of the short timeline, DFACS was unable to provide transportation.
The juvenile court’s order found that at times the mother had access to
transportation to assist with reunification and at times she did not, but also found that
the mother was “resistant to family preservation services” and “did not utilize
referrals for services to reunify with the children,” although DFACS continued to
provide them. On this basis, it found that DFACS’s efforts to promote permanency,
avoid foster care, preserve and reunify the family were reasonable. Given that on
appeal from a termination order, it is the role of the juvenile court, rather than this
18 Court, to weigh the evidence and resolve issues of credibility or conflicting evidence,
see In the Interest of L. B., 356 Ga. App. 488, 491 (2) (847 SE2d 861) (2020), we find
no error.
4. The mother additionally contends in various enumerations that the
termination of her parental rights violated her constitutional rights and that the
juvenile court erred in allowing protected patient-therapist testimony that “violat[ed]
the equal protection clause of the United States Constitution.” However, she failed
to show that she raised any constitutional arguments below or obtained a ruling from
the juvenile court on any constitutional claims.
“A constitutional issue cannot be considered when asserted for the first time
on appeal but must be clearly raised in the trial court and distinctly ruled upon there.
. . . Thus, as the arguments were neither raised nor ruled upon below, we do not
undertake such exercise on appeal.” (Citation and punctuation omitted.) Cockerham
v. Cockerham, 359 Ga. App. 891, 901 (6) (860 SE2d 163) (2021).
In sum, for the reasons outlined above, the juvenile court’s order is affirmed
as to M. C. and A. B., and vacated and remanded with direction as to K. B.
Judgment affirmed in part and vacated and remanded in part. Miller, P. J., and
Pipkin, J., concur.