In the Interest of A. M.

751 S.E.2d 144, 324 Ga. App. 512
CourtCourt of Appeals of Georgia
DecidedNovember 6, 2013
DocketA13A1553
StatusPublished
Cited by5 cases

This text of 751 S.E.2d 144 (In the Interest of A. M.) 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 the Interest of A. M., 751 S.E.2d 144, 324 Ga. App. 512 (Ga. Ct. App. 2013).

Opinion

BARNES, Presiding Judge.

We granted the parents’ application for discretionary review of the juvenile court’s order denying their motion pursuant to OCGA § 15-11-40 to modify or vacate the order terminating their parental rights to their five minor children, A. M., A. M., D. M., E. M., and M. M., based on newly discovered evidence and changed circumstances. On appeal, the parents contend that their trial counsel was ineffective and the trial court failed to consider changes to the parents’ circumstances and newly discovered evidence. They also raise issues regarding the termination itself. Upon our review, we affirm.

1. We note at the outset that, although the parents filed an application for discretionary review, the juvenile court’s order denying their motion seeking modification under OCGA § 15-11-40 was a final judgment and thus directly appealable under OCGA §§ 5-6-34 (a) (1) and 15-11-3. See In the Interest of J. N. F., 306 Ga. App. 313, n. 1 (701 SE2d 925) (2010); In the Interest of J. L. K., 302 Ga. App. 844, 846-847(1) (691 SE2d 892) (2010); In the Interest of J. N., 302 Ga. App. [513]*513631, 632-634 (1) (691 SE2d 396) (2010). Accordingly, when, as here, a party files a discretionary application when an order may be appealed directly, we grant the application under OCGA § 5-6-35 (j).1

2. This court previously vacated and remanded a November 2009 order by the juvenile court granting the motion of the Department of Family and Children Services (“the Department”) to cease family reunification efforts involving these parents and children. In the Interest of A. M., 306 Ga. App. 358 (702 SE2d 686) (2010). We determined in that opinion that, according to the evidence presented, the four oldest children, who were all younger than four years, were placed in shelter care in July 2008 after being referred to the Department based on health concerns, including malnutrition. Id. at 359. In September 2008, the juvenile court found that the children were deprived, based on their medical conditions. The fifth child, who was born in November 2008, was placed with the Department shortly after birth and found to be deprived in December 2008. Because neither deprivation order was appealed, the parents are bound by the juvenile court’s finding that the children were deprived at that time. In the Interest of C. J., 279 Ga. App. 213, 216 (1) (630 SE2d 836) (2006).

The juvenile court gave the Department legal custody for one year from the date they were removed from their parents, and in January 2009 the juvenile court entered an order incorporating case plans for all five children. In June 2009, the Department moved to extend custody and sought permission to cease its efforts to reunify the family. During the hearing on the nonreunification motion, the case manager testified about the children’s medical conditions. In the Interest of A. M., 306 Ga. App. at 359. For example, the twins have facial deformities and had frequent bouts of pneumonia and chest infections; one twin required a feeding tube and had seizures; two of the other children required feeding tubes because they could not swallow; and the youngest child had a brain shunt that required monitoring. Id. While the parents had met some of their case plan goals, the case manager thought they did not understand the children’s medical needs well enough to have unsupervised visits. Id. A contractor who provided “hands-on directional parenting” services working one-on-one with the parents testified that she thought the parents were unable to meet the demands of the children’s extreme [514]*514special needs, and gave examples of why she thought so. Id. The foster mother described certain instances in which the parents’ behavior disturbed her, and the psychological evaluation contains a finding that the parents had little understanding about the care the children required. Id. at 360.

In our opinion issued on October 6, 2010, this court determined that clear and convincing evidence supported the juvenile court’s conclusion that reunification efforts would be detrimental to the children, because the parents were unable to meet their children’s medical needs and the children’s lives would be endangered without the appropriate level of medical care. In the Interest of A. M., 306 Ga. App. at 360 (2). We also found, however, that no evidence supported the juvenile court’s finding that the parents had “a medically verifiable deficiency of their mental health such as to render them incapable of providing adequately for the physical needs of the children,” which would also be a ground for terminating their parental rights. Id. at 362-364 (5). Therefore, the order granting the Department’s motion for nonreunification was vacated, the case was remanded to the juvenile court with direction to review and reissue its order consistent with its findings, and the parents were authorized to appeal the new ruling within 30 days. Id. at 365.

Upon review of the case, the juvenile court issued a modified order on October 15, 2009, based on the evidence previously considered and this court’s direction, again granting the Department’s motion to cease reunification services. The parents did not appeal that order. In December 2009 and again in September 2010, the Department petitioned the juvenile court to terminate the parents’ rights to the children based on their inability to meet the children’s extreme special needs. In November 2010, the Department filed an amended deprivation petition, and in February 2011, the juvenile court issued a judicial review order finding that the children should continue in their current placements.

Finally, on June 10, 2011, the juvenile court issued an order terminating the parents’ parental rights, finding that they would never be able to meet their children’s special needs. The court found that the children had a combined total of seventy-five medical appointments each month, that their care required three adults working full-time and a fourth adult part-time, and that the parents had no concrete plan to meet the children’s daily needs. The juvenile court noted that the children needed stability and permanence, and that the foster parents intended to adopt all five children if the termination petitions were granted. That order was not timely appealed.

Four months later, on October 12, 2011, the Department petitioned the court to review the adoption efforts for the children, who [515]*515were doing well in adoptive placement as the Department awaited approval for adoption assistance. On October 14, 2011, the juvenile court appointed a guardian ad litem to represent the children and scheduled a hearing for November 2, 2011. That same day, the parents filed a motion for new trial and a motion for reconsideration, which the Department moved the court to dismiss. In December 2011, the parents filed an amended motion to modify or vacate the termination order based on newly discovered evidence and changed circumstances. The juvenile court conducted a hearing in February 2012 and issued an order denying the parents’ motion to modify the termination order, which is the order now on appeal.

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Bluebook (online)
751 S.E.2d 144, 324 Ga. App. 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-a-m-gactapp-2013.