FIFTH DIVISION MCFADDEN, P. J., BROWN and MARKLE, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 26, 2023
In the Court of Appeals of Georgia A23A0194. IN THE INTEREST OF B. R., a child. A23A0356. IN THE INTEREST OF B. R., a child.
BROWN, Judge.
In this dependency case, the mother of B. R. (“the child”), a three-year-old girl
born on December 13, 2019, appeals from two juvenile court orders issued after
separate hearings.1 In Case No. A23A0194, the mother asserts that the juvenile court
erred in: (1) failing to issue an order with all requisite written findings of fact,
including a specific basis for its finding of continued dependency; (2) failing to
enforce the requirement that a permanency plan report be submitted five days before
1 We have jurisdiction to consider a direct appeal from the orders before us because they both make findings regarding dependency and custody. See In the Interest of I. S., 278 Ga. 859, 860-861 (607 SE2d 546) (2005); In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997); In the Interest of S. J., 270 Ga. App. 598, 607 (1) (a) (607 SE2d 225) (2004). a scheduled hearing or properly incorporating it into its order and the record; (3)
granting a continuance in the absence of good cause; and (4) finding that clear and
convincing evidence established continued dependency. In Case No. A23A0356, the
mother makes essentially the same arguments excluding the lack of good cause for
a continuance. For the reasons outlined below, we vacate the juvenile court’s orders
and remand these cases with instruction.
Procedural Background
In appeals from orders in a dependency case, we construe the evidence in the
light most favorable to the juvenile court’s findings. See In the Interest of A. T., 309
Ga. App. 822 (711 SE2d 382) (2011). In this case, the record shows that the DeKalb
County Department of Family and Children’s Services (“DFCS”) took custody of the
child when she was four days old because the mother used cocaine throughout her
pregnancy, the child’s urine tested positive for cocaine at birth, and the mother tested
positive for cocaine at the hospital. The child was born at 37 weeks gestation and
weighed three pounds. The mother did not seek prenatal care during her pregnancy
and stated that she used illicit substances to manage her stress. DFCS placed the child
in foster care.
2 On January 14, 2020, DFCS filed a dependency petition outlining the above
facts in addition to asserting that the mother “has a history of illegal drug [use] that
impairs her ability to parent the child,” the mother “has prior CPS history with
DeKalb DFCS,” the mother tested positive for cocaine in a drug test in open court on
December 20, 2019, that the father refused to submit to such a test, and that the father
had recently reported to DFCS that the mother was missing. At the time the petition
was filed, the father had not yet legitimated the child or participated in DNA testing.
On March 13, 2020, following a hearing held on January 29, 2020, the juvenile
court entered an “Order of Adjudication and Temporary Disposition” finding that the
child was dependent based upon a list of the same facts asserted in DFCS’s
dependency petition. It ordered the child to remain in DFCS custody.
On April 28, 2020, the juvenile court entered a disposition order following a
75-day review conducted on February 19, 2020, in which the court “received oral and
documentary evidence.” It ordered and adopted “the concurrent permanency plan of
reunification and adoption to which the parties have agreed.” It scheduled a
permanency hearing for August 5, 2020.
On August 25, 2020, the juvenile court entered a “Permanency Hearing/Judicial
Review” following a virtual hearing. It noted that the child was “not making as many
3 sounds as she should” and that a recommendation had been made for occupational
and speech therapy. It found that the parents had “not completed their court-ordered
case plan in order to reunify with the child.” While the mother had completed a
psychological/parenting assessment, she had not yet completed the goals of individual
therapy, random drug screens, and stable housing. At that time, the parents were
visiting with the child virtually. The permanency plan remained concurrent
reunification and adoption.
By the time the court entered its next “Permanency Hearing/Judicial Review”
order on February 17, 2021, the father had legitimated the child, and both parents
were employed. While the parents were “making good progress on their case plan,”
they had not yet “completed their court ordered case plan in order to reunify with the
child.” Outstanding goals for the mother included individual therapy, parenting
classes, random drug screens, and stable housing. Visitation continued to be virtual.
On August 4, 2021, the case was scheduled for a permanency hearing and
“[p]re-[t]rial” on DFCS’s petition to terminate parental rights.2 In an order entered on
September 1, 2021, the juvenile court continued the case “to perfect service on the
2 The petition to terminate parental rights does not appear in the record before us.
4 mother.” The order notes that “[t]he parents have not submitted to random drug
screens and have not completed parenting classes.”
When the parties appeared for the rescheduled pretrial hearing on September
1, 2021, the court accepted their joint request to hold a permanency hearing in lieu
of the pretrial hearing.3 The trial court’s subsequent “Permanency Hearing/Judicial
Review” order notes that the parents submitted to three random drug screens. Two
urine screens for the mother were negative and a hair follicle test was positive; all
three of the father’s drug screens were negative. Additionally, both parents were
employed and living together in stable housing suitable for the child. The child had
begun speech therapy and was wearing a leg brace to help her walk. Visitation at the
time of this order had recently changed to in-person, with one such visit having taken
place. The court declined to order the child returned to her parents because they had
not yet completed “their court-ordered case plans” but once again found they were
“making good progress.”
Hearing and Order at Issue in Case No. A23A0194
3 Two months later, the juvenile court granted DCFS’s motion to dismiss its petition to terminate parental rights.
5 At the next scheduled permanency hearing on March 2, 2022, the mother’s
attorney asked that the child be returned to the mother’s custody because “there was
no testimony that there was any connection between any positive [drug] screens and
my client’s ability to parent. . . . [She] has been appropriate with [the child] during the
visits, she’s been consistent with visits, and there haven’t been any concerns.” In its
subsequent order, entered on April 26, 2022, nunc pro tunc to March 2, 2022, the
juvenile court made more detailed findings of the parties’ progress than it had in the
past.4 Specifically, the parents continued to live with one another and work, DFCS
found their home to be “well furnished and suitable for the child,” the parents visited
the child weekly for three to four hours, and the transporter had “no concerns with the
visits which are supervised in the home.” It also noted that the father had successfully
completed negative drug screens and denied the DFCS’s offer to separate his case
from that of the mother “in order for his home to be an approved and suitable
placement for the child.” With regard to the mother, the juvenile court recounted that
she had tested positive four times out of sixteen drug screens, that she was still
participating in individual counseling, as well as outpatient substance abuse treatment
and Narcotics Anonymous. Based on a referral for inpatient drug treatment, the
4 This is the first hearing for which a transcript appears in the record.
6 mother agreed to enroll, and DFCS located a program for her. The juvenile court
found once again that the child needed to remain in foster care because “[t]he mother
has not completed her court-ordered case plan in order to reunify with the child, and
the father resides with the mother.” The juvenile court’s order stated that it
“continued the matter for good cause [until April 27, 2022] to allow for the parents
to undergo updated parental fitness assessments pursuant to OCGA § 15-11-111.”5
In its view, “the mother’s untreated drug addiction places the child at risk.” While the
juvenile court reserved its final ruling “pending the results of these evaluations,” it
also concluded that the child remained a dependent child. During the hearing, the
court explained that it could not “make a determination on the permanency issues
without the additional information.” Nonetheless, its order following the hearing
states that it adopted the permanency plan for reunification and adoption submitted
by DFCS, a copy of which does not appear in the record before us. It is unclear from
the order what “remaining portion of the permanency hearing” was continued for
good cause.
5 In the hearing, the juvenile court stated it was also continuing the case “to determine the feasibility of transferring it to family treatment court where they have a myriad of ongoing supports for families such as this.”
7 Additional Continuances
The record before us contains no additional information about the scheduled
April 27, 2022 hearing. On June 8, 2022, the parties appeared before the juvenile
court; at the beginning of the hearing, the DFCS attorney announced it was “on for
a continued permanency hearing,” that the updated parenting assessments had been
completed, and that DFCS had provided the mother with information about the drug
court. However, because the mother’s attorney had not had an opportunity to speak
to her client about drug court specifics, another short continuance was requested. The
mother’s attorney raised no objection to another continuance, and the case was
rescheduled for June 23, 2022. On June 22, 2022, the juvenile court entered an order,
nunc pro tunc to June 8, 2022, rescheduling the case because the mother’s attorney
requested the continuance for them to have further discussions. It found the request
constituted good cause for a continuance.
Order and Hearing at Issue in Case No. A23A0356
At the next hearing, held on June 23, 2022, no mention was made of the
updated parental fitness assessments ordered by the juvenile court, and they do not
appear in the record before us. The mother’s attorney announced at the beginning of
the hearing that she had gone over the family treatment court program with the
8 mother and determined that the mother would not be moving forward with it. The
only testifying witnesses were the DFCS case manager and the parents.
The case manager testified that the father had completed his case plan and
recently been granted unsupervised visitation with the child that he had not yet
exercised. According to the caseworker, the father preferred to parent as a unit with
the mother, and she explained to him that DFCS was at the point where it would have
to consider termination proceedings due to continued, unresolved drug use by the
mother. She explained that the father could obtain custody with a protection plan in
place after demonstrating his ability to independently parent the child if the mother
were in drug treatment or he could obtain sole custody and live apart from the mother.
The caseworker testified that the mother’s case plan was incomplete because
she had not yet completed drug treatment or six months of negative drug screens.
DFCS made two referrals for drug treatment, one of which was not ideal because it
was inpatient and would require the mother to quit her job and another hybrid
program in which the mother was not willing to enroll. The mother inconsistently
attended Narcotics Anonymous. According to the caseworker, the mother was
consistently drug screened. She then testified, over the objection of the mother’s
counsel, about the results of various tests for which no documentation was provided
9 in the hearing. Specifically, an oral drug screen on June 21, 2022, that “was positive
for alcohol and negative for any substances” and a hair follicle test in May 2022, that
“was positive for cocaine, Benzoy, opioids, the level for Hydrocodone and for
Oxycodone.” The caseworker acknowledged that the mother had a prescription for
Codeine/Oxycodone for a March 2022 procedure. Finally, she stated that the mother
visited weekly with the child, that no concerns were reported after the visits, and that
the mother had stable employment and housing.
The mother testified that she had not found a drug program that she was
comfortable attending, that she no longer has a drug problem, and cannot “help that
it’s still showing up in [her] hair.” The father testified that while he feels strongly
about the mother’s participation in their child’s life, he was prepared to do what he
had “to do to get [B. R.] back home.” He explained that he had already raised three
grown children and was confident that he could parent his young daughter. He also
stated his belief that the mother was not using drugs or in need of treatment as she no
longer had a drug problem.
In its order entered on July 28, 2022, nunc pro tunc to June 23, 2022, the
juvenile court once again found that the child continued to be dependent and that
continued removal of the child was in her best interest. It also adopted the
10 permanency plan submitted by DFCS, which is not in the record before us. It
concluded that the child needed to remain in foster care for her safety because the
mother “has not completed her court-ordered case plan in order to reunify with the
child, and the father resides with the mother. Further, the father testified that he does
not believe the mother still uses drugs and that the drug tests are incorrect.” It further
found that “the father’s ability to independently parent the child is currently
unknown.” Its order recounts the testimony presented at the hearing that is
summarized above. The juvenile court’s order makes no mention of the updated
parental fitness assessments it had previously ordered.
1. In both cases, the mother argues that the juvenile court’s orders cannot stand
because they fail to include the requisite, specific findings for dependency and
parental unfitness. As explained below, we must vacate the juvenile court’s orders
Based on the title and content of its orders, it is clear that the juvenile court
held joint periodic review and permanency plan hearings. See OCGA § 15-11-216 (a)
(periodic reviews shall be held 75 days after child adjudicated dependent, four
months after 75-day review, and thereafter as juvenile court determines necessary);
OCGA § 15-11-230 (c) (permanency plan hearing to be held no less frequently than
11 every six months during time child adjudicated as dependent and continues in
DFCS’s custody). Following a periodic review hearing, the juvenile “court shall issue
written findings of fact that include,” among other requirements, “[w]hy a child
adjudicated as a dependent child continues to be a dependent child.” OCGA § 15-11-
218 (a) (1). An order issued after a permanency plan hearing does not require a
finding of continued dependency but rather six to eleven required findings, depending
upon the age and placement of the child, related to efforts to achieve permanency for
the child. OCGA § 15-11-232 (a).
With regard to a finding of continued dependency, this Court has made clear
that an order finding dependency should include “findings of fact demonstrating clear
and convincing evidence that (a) present, not merely past or future, dependency
existed as to [a] child[ ], and (b) the dependency resulted from unfitness on the part
of the [parent].” In the Interest of M. C., 365 Ga. App. 398, 403 (1) (878 SE2d 625)
(2022). See also In the Interest of A. B., 350 Ga. App. 158, 159 (1) (828 SE2d 394)
(2019). An order which “contains no finding whatsoever with regard to parental
unfitness” prevents this Court “from making an intelligent review of the mother’s
challenges to the sufficiency of the hearing evidence.” (Citation and punctuation
omitted.) In the Interest of M. C., 365 Ga. App. at 404 (1). In such a case, we vacate
12 the juvenile court’s order and remand the case for the juvenile court to make the
appropriate findings. Id.
Here, the juvenile court’s orders failed to include a finding with regard to
parental unfitness, and for this reason alone, we must vacate its orders and remand for
the juvenile court to make appropriate findings, after which, the mother may file
another appeal if necessary. In the Interest of K. K., 364 Ga. App. 82, 85 (874 SE2d
110) (2022); In the Interest of M. C., 365 Ga. App. at 404 (1). Other omitted findings
should also be remedied upon the return of the case to juvenile court. Specifically,
“[t]he date by which it is likely that a child adjudicated as a dependent child will be
returned to his or her home, placed for adoption, or placed with a permanent guardian
or in some other alternative permanent placement.” OCGA § 15-11-232 (a) (6).
Additionally, as pointed out by the mother on appeal, the permanency plans prepared
by DFCS and referenced in the juvenile court’s orders as having been adopted by the
juvenile court do not appear in the record before us, and our review is hindered by
their absence. See OCGA § 15-11-231 (requirement for DFCS to submit permanency
plan report at least five days before permanency plan hearing); OCGA § 15-11-232
(b) (outlining requirements for “permanency plan incorporated in the court’s order”).
13 2. In Case No. A23A0194, the mother contends that “[t]he juvenile court did
not establish a sufficient basis for good cause to sua sponte continue portions of the
March 2, 2022 proceeding,[6] nor did the order include with specificity what matters
the juvenile court was actually continuing or reserving its ruling on.” She asserts the
continuance “caused an unwarranted delay in the return of custody,” “increas[ed] the
risk of the disconnect from her child,” and resulted in her “missing the critical
developmental milestones of a toddler as well as the joyous ‘first’ moments of [the
child] that can never be recaptured.” She asks that we reverse “the juvenile court’s
finding of continued dependency” as a result.
In support of these contentions, the mother relies upon OCGA § 15-11-110 and
the Supreme Court of Georgia’s opinion in In the Interest of I. L. M., 304 Ga. 114
(816 SE2d 620) (2018). OCGA § 15-11-110 provides, in pertinent part:
(a) Upon request of an attorney for a party, the court may continue any hearing under this article beyond the time limit within which the hearing is otherwise required to be held; provided, however, that no continuance shall be granted that is contrary to the interests of the child. In considering a child’s interests, the court shall give substantial weight to a child’s need for prompt resolution of his or her custody status, the
6 The mother makes no argument with regard to the second continuance requested on June 8, 2022.
14 need to provide a child with a stable environment, and the damage to a child of prolonged temporary placements.
(b) Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion. Whenever any continuance is granted, the facts proved which require the continuance shall be entered in the court record.
In I. L. M., the Supreme Court of Georgia interpreted this provision in
conjunction with OCGA § 15-11-181 (a), which governs the time limits in which the
initial adjudication hearing on a dependency petition must occur and the adjudication
be completed. 304 Ga. at 117. Significantly, OCGA § 15-11-181 (a) expressly states
that “[i]f adjudication is not completed within 60 days from the date [the] child was
taken into protective custody, the petition alleging dependency may be dismissed
without prejudice.” After finding that the juvenile court’s order continuing the case
“failed to meet the stringent requirements of OCGA § 15-11-110 (b) for ordering a
continuance beyond that statutory period,” the Supreme Court of Georgia concluded
that the juvenile court abused its discretion by denying the parents’ motion to dismiss
the dependency petition based on OCGA § 15-11-181 (a). (Footnote omitted.) In the
Interest of I. L. M., 304 Ga. at 121-122.
15 In the Interest of I. L. M., is not controlling here. First, OCGA § 15-11-181 (a)
does not apply as we are not addressing the continuance of an initial adjudication
hearing more than 60 days after the child was taken into protective custody, and there
is no other statute expressly authorizing dismissal of the dependency petition for
failing to meet a hearing deadline. Second, unlike In the Interest of I. L. M., the
mother did not file, and the trial court did not rule, on a motion to dismiss. Finally,
as the mother points out, it is unclear from the juvenile court’s order what was being
continued as the juvenile court’s order found continued dependency and adopted the
concurrent permanency plan for reunification and adoption. Without this information,
this Court cannot evaluate the propriety of the juvenile court’s continuance.
Therefore, under the particular facts and circumstances of this case and in light of the
need to vacate and remand the orders as outlined above, we vacate the continuance
order and instruct the juvenile court to specify on remand what matters were
continued following the March 2, 2022 hearing. Cf. In the Interest of A. H., 332 Ga.
App. 590, 596 (2) (774 SE2d 163) (2015).
3. In light of our holding in Divisions 1 and 2, we need not address the
mother’s arguments regarding the adequacy and evidentiary basis of the juvenile
16 court’s findings of continued dependency. In the Interest of M. C., 365 Ga. App. at
404 (2).
Judgments vacated and both cases remanded with direction. Markle, J.,
concurs. McFadden, P. J., concurs fully and specially.
17 A23A0194, A23A0356. IN THE INTEREST OF B. R., a child (two
cases).
MCFADDEN, Presiding Judge, concurring fully and specially.
I agree with all that is said in the majority opinion. I would also address the
mother’s argument that the juvenile court erred by considering hearsay testimony
when the court found continued dependency in the order entered April 26, 2022,
following the March 2, 2022, hearing. That argument is likely to continue to arise in
subsequent proceedings below. So I would hold, that at least on the record before us
today, it lacks merit.
As the mother acknowledges, OCGA § 15-11-230 (f) provides that at
permanency plan hearings, such as the hearing that took place on March 2, 2022,
“[t]he court may consider any evidence, including hearsay evidence, that the court
finds to be relevant, reliable, and necessary. . . .” The mother concedes that this
statute applies, but argues that the hearsay testimony presented at the hearing was not relevant, reliable, and necessary. She seems to argue that the juvenile court was
required to articulate its findings regarding the relevance, reliability, and necessity of
the hearsay testimony.
Nothing in the Code section requires the juvenile court to articulate her
findings about the relevance, reliability, and necessity of hearsay testimony. Whether
to consider such evidence under this statute is a matter within the discretion of the
court. And “[u]nless shown otherwise, the trial court is presumed to have followed
the law.” Henderson v. State, 295 Ga. 333, 335 (1) (b) (759 SE2d 827) (2014)
(citation and punctuation omitted). The mother has not shown otherwise.
At the hearing, the case worker testified that Academy Family Empowerment
conducted a hair follicle drug screen. She explained that the drug screener emails the
case worker when she is “headed to the client, and post screening she . . . text[s the
case worker] that it was completed, it was denied or it was a missed appointment.”
The case worker testified that the mother’s screening was completed; that the screener
emailed the case worker the results of the screening; and that the mother tested
positive for cocaine and the presence of “benzonite.”
The mother objected to this testimony on the ground that DFCS had to provide
an affidavit for authentication of the test results or had to lay some other foundation
2 to establish their reliability, if the case worker lacked personal knowledge, and that
DFCS had not established a chain of custody. She did not object to the relevance or
necessity of the testimony.
The juvenile court overruled the mother’s objections, ruling that she would
allow the hearsay to the extent the case worker could identify the basis of her
knowledge and that the mother’s objections would go to the weight of the testimony.
Given this ruling, which clearly shows that the juvenile court considered the mother’s
objection to the hearsay testimony on the ground of reliability, the mother has not
overcome the presumption that the court followed OCGA § 15-11-230 (f).