FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
June 13, 2012
In the Court of Appeals of Georgia A12A0431. IN THE INTEREST OF: C. A., a child. BO-020
BOGGS, Judge.
Challenging the sufficiency of the evidence, the mother of C. A., a fifteen-
month-old girl, appeals from the trial court’s order terminating her parental rights. For
the reasons explained below, we reverse.
The record before us includes a 66-page transcript from the termination hearing
in which only the DFACS caseworker, the mother, and an assistant pastor in the
mother’s church testified. Although the mother requested that the juvenile court clerk
omit nothing from the record, the record before us does not include any case plans nor
any of the pleadings or orders from the deprivation proceedings. The only pleadings
in the record before us relate to the petition for termination of the mother and father’s
parental rights. The record shows that C. A. was born premature (29 weeks gestation) on
February 24, 2010. The caseworker testified that DFACS became involved while the
child remained in the hospital after “receiv[ing] a report that the mother was acting
childlike and she also admitted to having another child taken from her custody.” The
caseworker agreed that “a term that was previously used in a hearing was
schizophrenia” and that “[t]hey said she was acting like that.” The caseworker
testified that DFACS obtained custody of the child on April 5, 2010 “[d]ue to [the
mother] not having any family at the time and also due to the reports of
schizophrenia.” The caseworker testified that the child was placed in a foster home
that has continuously cared for the child and would like to adopt her.
The caseworker testified that DFACS entered into a reunification plan with the
mother on April 22, 2010 that required her “to follow all of the recommendations
from her mental health provider, complete the parenting classes and maintain stable
housing.” Her plan also required her to take proper medications and work with a
parent aide. The caseworker testified that when the mother learned she was pregnant
2 again1 “she had to stop taking her medication, but she did complete her parenting
classes.”
The caseworker acknowledged that the mother visited her daughter on a regular
basis and missed only two visits due to a doctor’s appointment and the birth of
another child. Despite these regular visits, the caseworker testified that the child was
not bonded to the mother and cried during visits. The mother did not pay any child
support, but did buy the child a Christmas gift.
According to the caseworker, the mother did not maintain stable housing
because she moved six times in one year and was currently living with a boyfriend
who has “an extensive criminal history.” The caseworker acknowledged during cross-
examination that some of the mother’s reasons for moving were not unreasonable and
that the mother had informed her when she moved.
The caseworker admitted that the mother could “change diapers, cook, look
after the child,” but explained that there “was a concern that she won’t be able to do
it independently, that she would need supervision.” Based upon a CCFA2 and the
1 This child was born on March 7, 2011, and was also taken into DFACS custody and placed in the same foster home as his sister, C. A. 2 The caseworker testified that CCFA means Comprehensive Child and Family Assessment.
3 psychological report, the caseworker testified that she did not believe the mother
could take care of the child. While the mother completed all of the parenting classes,
the caseworker did not believe that the mother completed them successfully based
upon information she received from the parenting aide. The caseworker testified that
the parenting aide told her that “she didn’t think [the mother] could really understand
some of the parenting techniques that she taught her.”
The caseworker testified that DFACS sought to terminate the mother’s parental
rights because “[w]e have a psychological that states that she is schizophrenic. We
had her working with a parenting aide and they also suggested that she wouldn’t be
able to effectively care for the child due to her mental health needs. Also an instructor
that has been her CCFA has stated the same recommendation.” Other than the
diagnosis of schizophrenia, the caseworker was not aware of any other physical or
mental problems of the mother.
During cross-examination, the caseworker acknowledged that the mother had
informed her that she believed she was no longer schizophrenic, that she had been
living in a home owned by her church pastor for the past four months, and that she
received social security disability payments in the amount of $657 a month.
4 The mother testified that after the birth of her last child in March 2011, she
underwent a tubal ligation to prevent additional pregnancies. Following this birth, she
sought treatment with a doctor because she knew she needed some help “cause of my
stuff.” She began taking Risperdal, an anti-psychotic medication, and Trazadone, an
anti-depressant medication. The mother explained that she was functioning better
with this medication.
The mother testified that medications previously prescribed to her by a
different doctor were too strong and caused her to hear voices. According to the
mother, this medication resulted in someone saying she had schizophrenia. She
stopped hearing voices when she stopped taking the too-powerful medication over
a year before the termination hearing. She denied ever experiencing visual
hallucinations. She explained that she had been receiving social security disability
benefits for about four years based upon a diagnosis of sickle cell anemia and
depression, not schizophrenia. She testified that the sickle cell anemia caused her to
“get tired and stuff in my legs.” She denied that anyone had talked with her about the
need to pay child support for her daughter.
She explained that her church is like a second family to her and they are willing
to help her with her daughter in ways other than residing with the mother. The
5 assistant pastor for her church testified that she met the mother two months before the
hearing. She explained that the mother and her boyfriend were renting a home owned
by the pastor of the church and that the church had provided her assistance with
clothing, food, and utilities.
At the conclusion of the hearing, the trial court noted that there was an
unappealed order of deprivation and “a longstanding established inability of the
mother because of her mental illness to take care of the child. And even though
schizophrenia is part of it, there may also be some cognitive intellectual issues as well
. . . [A]lthough she seems to be doing better under medication at the moment, the
illness is likely to continue and will not likely be remedied.”
The trial court subsequently signed an order prepared by DFACS’s attorney.
Although the certified transcript does not reflect that DFACS introduced any exhibits
into evidence, the order states that DFACS introduced into evidence “one exhibit, a
Free access — add to your briefcase to read the full text and ask questions with AI
FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
June 13, 2012
In the Court of Appeals of Georgia A12A0431. IN THE INTEREST OF: C. A., a child. BO-020
BOGGS, Judge.
Challenging the sufficiency of the evidence, the mother of C. A., a fifteen-
month-old girl, appeals from the trial court’s order terminating her parental rights. For
the reasons explained below, we reverse.
The record before us includes a 66-page transcript from the termination hearing
in which only the DFACS caseworker, the mother, and an assistant pastor in the
mother’s church testified. Although the mother requested that the juvenile court clerk
omit nothing from the record, the record before us does not include any case plans nor
any of the pleadings or orders from the deprivation proceedings. The only pleadings
in the record before us relate to the petition for termination of the mother and father’s
parental rights. The record shows that C. A. was born premature (29 weeks gestation) on
February 24, 2010. The caseworker testified that DFACS became involved while the
child remained in the hospital after “receiv[ing] a report that the mother was acting
childlike and she also admitted to having another child taken from her custody.” The
caseworker agreed that “a term that was previously used in a hearing was
schizophrenia” and that “[t]hey said she was acting like that.” The caseworker
testified that DFACS obtained custody of the child on April 5, 2010 “[d]ue to [the
mother] not having any family at the time and also due to the reports of
schizophrenia.” The caseworker testified that the child was placed in a foster home
that has continuously cared for the child and would like to adopt her.
The caseworker testified that DFACS entered into a reunification plan with the
mother on April 22, 2010 that required her “to follow all of the recommendations
from her mental health provider, complete the parenting classes and maintain stable
housing.” Her plan also required her to take proper medications and work with a
parent aide. The caseworker testified that when the mother learned she was pregnant
2 again1 “she had to stop taking her medication, but she did complete her parenting
classes.”
The caseworker acknowledged that the mother visited her daughter on a regular
basis and missed only two visits due to a doctor’s appointment and the birth of
another child. Despite these regular visits, the caseworker testified that the child was
not bonded to the mother and cried during visits. The mother did not pay any child
support, but did buy the child a Christmas gift.
According to the caseworker, the mother did not maintain stable housing
because she moved six times in one year and was currently living with a boyfriend
who has “an extensive criminal history.” The caseworker acknowledged during cross-
examination that some of the mother’s reasons for moving were not unreasonable and
that the mother had informed her when she moved.
The caseworker admitted that the mother could “change diapers, cook, look
after the child,” but explained that there “was a concern that she won’t be able to do
it independently, that she would need supervision.” Based upon a CCFA2 and the
1 This child was born on March 7, 2011, and was also taken into DFACS custody and placed in the same foster home as his sister, C. A. 2 The caseworker testified that CCFA means Comprehensive Child and Family Assessment.
3 psychological report, the caseworker testified that she did not believe the mother
could take care of the child. While the mother completed all of the parenting classes,
the caseworker did not believe that the mother completed them successfully based
upon information she received from the parenting aide. The caseworker testified that
the parenting aide told her that “she didn’t think [the mother] could really understand
some of the parenting techniques that she taught her.”
The caseworker testified that DFACS sought to terminate the mother’s parental
rights because “[w]e have a psychological that states that she is schizophrenic. We
had her working with a parenting aide and they also suggested that she wouldn’t be
able to effectively care for the child due to her mental health needs. Also an instructor
that has been her CCFA has stated the same recommendation.” Other than the
diagnosis of schizophrenia, the caseworker was not aware of any other physical or
mental problems of the mother.
During cross-examination, the caseworker acknowledged that the mother had
informed her that she believed she was no longer schizophrenic, that she had been
living in a home owned by her church pastor for the past four months, and that she
received social security disability payments in the amount of $657 a month.
4 The mother testified that after the birth of her last child in March 2011, she
underwent a tubal ligation to prevent additional pregnancies. Following this birth, she
sought treatment with a doctor because she knew she needed some help “cause of my
stuff.” She began taking Risperdal, an anti-psychotic medication, and Trazadone, an
anti-depressant medication. The mother explained that she was functioning better
with this medication.
The mother testified that medications previously prescribed to her by a
different doctor were too strong and caused her to hear voices. According to the
mother, this medication resulted in someone saying she had schizophrenia. She
stopped hearing voices when she stopped taking the too-powerful medication over
a year before the termination hearing. She denied ever experiencing visual
hallucinations. She explained that she had been receiving social security disability
benefits for about four years based upon a diagnosis of sickle cell anemia and
depression, not schizophrenia. She testified that the sickle cell anemia caused her to
“get tired and stuff in my legs.” She denied that anyone had talked with her about the
need to pay child support for her daughter.
She explained that her church is like a second family to her and they are willing
to help her with her daughter in ways other than residing with the mother. The
5 assistant pastor for her church testified that she met the mother two months before the
hearing. She explained that the mother and her boyfriend were renting a home owned
by the pastor of the church and that the church had provided her assistance with
clothing, food, and utilities.
At the conclusion of the hearing, the trial court noted that there was an
unappealed order of deprivation and “a longstanding established inability of the
mother because of her mental illness to take care of the child. And even though
schizophrenia is part of it, there may also be some cognitive intellectual issues as well
. . . [A]lthough she seems to be doing better under medication at the moment, the
illness is likely to continue and will not likely be remedied.”
The trial court subsequently signed an order prepared by DFACS’s attorney.
Although the certified transcript does not reflect that DFACS introduced any exhibits
into evidence, the order states that DFACS introduced into evidence “one exhibit, a
Court report marked as ‘DFCS #1’ with an attached confidential Parenting
Assessment that was previously used in court and marked as an Exhibit B. There was
also an Exhibit C which was a letter from Jamie J. Ford that was also testified to
6 without objection by the Case Manager. The Court Report, Exhibit B and Exhibit C
were submitted as one exhibit by DFCS.”3
The findings of fact portion of the order states that the “mother has had a
previous diagnosis of schizophrenic. . . . There were concerns throughout the history
of the case with the mother over her mental ability to care for a child. The
psychological report indicated that she could not care for the same.” It also states that
the mother completed a psychological evaluation which found that the mother was
not “fit to care for a newborn child. The parent aide expressed concerns about the
mother’s ability to parent.” The conclusions of law portion of the order states, in part,
that “the mother has a verifiable medical deficiency that prohibits her from being able
to properly parent or look after this child. The court does not question the fact that the
mother does love this child and is not abusive toward the child but because of her
mental deficiency, she is not capable of parenting.”
3 The record shows that DFACS’s attorney submitted exhibits to the juvenile court clerk almost two weeks after the termination hearing and represented that they had been “introduced in court at the termination hearing.” These exhibits include a three-page “court report” prepared by the DFACS caseworker; an eight-page parenting assessment prepared by a counselor with a master’s degree; and a three- page letter from a licensed marriage and family therapist and master addiction counselor. None of the exhibits have a handwritten date or initials on them, and as previously noted, the transcript contains no indication that they were ever tendered or admitted into evidence at the hearing.
7 On appeal, the mother contends, in part, that the trial court erred because
DFACS failed to prove her mental condition and that it would cause continued
deprivation and present unfitness as a parent. We agree.
We proceed in a termination case with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances. In determining whether to take this drastic step, the juvenile court must find by clear and convincing evidence both that there is parental misconduct or inability and that termination is in the best interest of the child. The first requirement is satisfied when the juvenile court finds that “(1) the child is deprived, (2) the lack of parental care or control is the cause of the deprivation, (3) such lack of care or control is likely to continue, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.”
(Citations, punctuation, and footnotes omitted.) In the Interest of M. A., 280 Ga. App.
854, 856 (635 SE2d 223) (2006). When determining whether a child is without proper
parental care and control, the juvenile court can consider “[a] medically verifiable
deficiency of the parent’s . . . mental or emotional . . . health of such duration or
8 nature as to render the parent unable to provide adequately for the physical, mental,
emotional, or moral condition and needs of the child.” (Emphasis supplied.) OCGA
§ 15-11-94 (b) (4) (B) (i).
In this case, the transcript prepared by the certified court reporter does not
show that the DFACS exhibit referenced in the juvenile court order prepared by
DFACS’s attorney was admitted into evidence. And, even if it were properly
admitted, we cannot consider any hearsay in these exhibits, nor can we consider the
diagnostic opinion of a third party not available for cross-examination. See In the
Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979), superceded by
statute on other grounds as noted in In the Interest of C. S., 282 Ga. 7, 8 (644 SE2d
812) (2007); In the Interest of C. D. E., 248 Ga. App. 756, 764 (2) (546 SE2d 837)
(2001).
Based upon the juvenile court’s express reliance upon hearsay in this exhibit
to support its conclusion that the mother suffered from schizophrenia to such a degree
that she was unable to provide for the needs of her child, we must reverse. In the
Interest f C. D. E., supra. 248 Ga. App. at 764-765 (2). This is not a case in which we
can affirm the juvenile court’s ruling based upon other admissible evidence of the
mother’s mental condition and its adverse impact on her ability to parent. Compare
9 In the Interest of D. P., 287 Ga. App. 168, 171 (1) (b) (651 SE2d 110) (2007) (parent
stipulated to admissibility of psychologist report and other admissible evidence
supported trial court’s findings). The caseworker’s testimony about the mother’s
mental condition and ability to parent was also based entirely upon the hearsay of
third parties who were not available for cross-examination. And, while the mother
admitted to some mental issues, her unrefuted testimony that her issues resulted from
over-medication and were resolved with different medication precludes a finding, by
clear and convincing evidence, that a lack of proper parental care and control is likely
to continue. See In the Interest of K. S., 271 Ga. App. 891, 893 (611 SE2d 150)
(2005); In the Interest of A. G. I., 246 Ga. App. 85, 87-88 (2) (a) (539 SE2d 584)
(2000).
“While we are reluctant to reverse the juvenile court’s determination, no
judicial determination is more drastic than the permanent severing of the parent-child
relationship.” (Citation omitted.) In the Interest of A. A., 252 Ga. App. 167, 173 (2)
(c) (555 SE2d 827) (2001). When advocating such a drastic step, DFACS must take
care to ensure that probative, admissible evidence on the issues presented is properly
before the juvenile court.
Judgment reversed. Doyle, P. J. and Andrews, J., concur.