In the Interest Of: C. G. and C. G., Children (Mother) v. State of Georgia

• Court: Court of Appeals of Georgia
• Decided: October 4, 2013
• Docket: A13A0920
• Status: Published

Opinion

THIRD DIVISION ANDREWS, P. J., DILLARD and MCMILLIAN, 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. http://www.gaappeals.us/rules/

October 4, 2013

In the Court of Appeals of Georgia A13A0920. IN THE INTEREST OF C. G. et al., children.

MCMILLIAN, Judge.

The mother of C. G. and C. G. appeals the juvenile court’s termination of her

parental rights.

“On appeal from a juvenile court’s decision to terminate parental rights, we

review the evidence in the light most favorable to the court’s decision and determine

whether any rational trier of fact could have found by clear and convincing evidence

that the parental rights should be terminated.” (Citation and punctuation omitted.) In

the Interest of E. S. K., 299 Ga. App. 35, 35-36 (681 SE2d 705) (2009).

The Department of Family and Children Services (DFACS) first took C. G. and

C. G. into custody on April 29, 2011 when the mother was arrested and jailed on a

charge of possession of methamphetamine, leaving the children without a custodian. The juvenile court’s initial detention order directed the mother to comply with drug

screens as requested by DFACS. On July 7, 2011, the juvenile court issued an order

finding that the children were deprived, citing the hearing testimony of an

investigator for the Rockdale County Sheriff’s Department, as well as the mother’s

testimony. According to the deprivation order, the investigator testified that during

the execution of a search warrant on the mother’s residence, police discovered

methamphetamine, marijuana, and drug-related items, including a pipe. The

methamphetamine was found in a hat on a bed in the mother’s bedroom, within the

children’s easy access. The mother told police that the children slept in the room. The

mother initially admitted that the drugs were hers, but later denied it.

The deprivation order also indicates that the mother chose to testify at the

deprivation hearing after being advised of her Fifth Amendment Rights, and she

admitted that she had used methamphetamine two weeks before being admitted to a

hospital for a stillbirth, which was shortly before the execution of the search warrant.

The mother admitted that she needed to “‘get herself together’” before getting her

children back. She said that she had a difficult time staying away from drugs while

she lived with her mother, who uses drugs. She acknowledged that her participation

in a substance abuse program would play a large role in any determination as to

2 whether her children would be returned to her. The deprivation order directed that

DFACS discuss with the mother her options for substance abuse treatment.

A final disposition hearing was held on September 7, 2011, and in the juvenile

court’s order dated September 12, 2011, the court found that the mother had done

nothing to address her substance abuse since the children had been removed from her

custody. The order reflects, however, that the mother may have, at least, moved from

her mother’s house to avoid the easy access illegal drugs she had previously

described. The case manager said that she had discussed with the mother the need to

obtain treatment for her substance abuse. On August 26, 2011, the mother met with

the case worker to discuss her case plan, and at that time tested positive for illegal

drugs; however, the mother denied any drug use. She told the case manager that she

was moving back into her mother’s home because her father asked her to “‘cop some

dope.’” Although the case manager scheduled a meeting for August 29 to discuss the

mother’s options for treatment and to go over an amended case plan, the mother failed

to appear for the meeting. On September 12, 2011, the trial court ordered, nunc pro

tunc to September 7, that the mother had until September 21 to seek rehabilitation

services or her reunification services would be terminated.

3 The mother apparently failed to seek substance abuse treatment, and on

October 24, 2011, DFACS filed a motion to end the reunification plan. On December

5, 2011, following a hearing, the juvenile court granted that motion, ending DFACS’s

reunification efforts. In that order, the juvenile court found that the mother had

“consistently” tested positive for the presence of illegal drugs and had missed two

appointments to discuss her entry into a substance abuse program since September

7, 2011. The order indicates that the mother met with the case manager on November

23, 2011, and reported that she was six months pregnant. The mother said that she did

not need to be in inpatient treatment, but neither had she made any effort to seek

outpatient treatment.

On December 23, 2011, the mother was re-incarcerated on the April drug

charges. And on February 6, 2012, she pled guilty and was sentenced as a first

offender to five years with two years to serve, which would be suspended upon her

successful completion of a rehabilitation program and aftercare.

In the interim, DFACS prepared new, non-reunification case plans for the two

children , and on April 23, 2012, DFACS filed a petition to terminate the mother’s

4 At the subsequent termination hearing on August 29, 2012, one of the

children’s former DFACS caseworkers1 testified that although the Department had

provided the mother the necessary referrals, she had not started any rehabilitation

program before her second incarceration in December 2011. She lacked stable

housing and employment because she was incarcerated, but DFACS had received

information indicating that the mother’s grandmother had offered the mother a place

to live after she completed her sentence. The case manager had not contacted the

grandmother, nor has she contacted the mother since her re-incarceration in December

2011. Thus, she had no knowledge of her financial circumstances. The case manager

indicated that the children had been placed with friends of the family, and their home

was being evaluated as a potential adoptive home.

The mother testified that she was on the waiting list to enter the Residential

Substance-Abuse Treatment (RSAT) program sponsored by the Department of

Corrections. A probation officer assigned to the mother’s case described the RSAT

program as an intensive six-month inpatient substance-abuse treatment program. The

1 The current case manager did not testify, although she was present and presumably available to do so.

5 mother cannot have the children with her during this program because it is part of the

prison system.

The probation officer further testified that following the mother’s successful

completion of the program, she would be expected to participate in six months of

probationary aftercare. During the first phase of aftercare, she would be required to

meet with her probation officer every week, to submit to weekly drug tests and to

attend at least two Narcotics Anonymous (NA) meetings every week. The mother

would also see a counselor every other week, who would evaluate her and determine

whether further treatment is indicated. During the second phase, her probation

meetings and drug tests would scale back to every other week, but she would be

required to attend three NA meetings per week instead of two. The program also

includes field visits to the mother’s home every month. The caseworker indicated that

DFACS would be satisfied with the treatment the mother would receive in the RSAT

program and would consider her successful completion of the program as meeting the

requirements of her case plan.

The probation officer indicated that the waiting list for this program was six

months. At the time of the hearing, the mother had been on the list for five months,

and she was slated to be the county’s next female prisoner to enter the program. He

6 estimated that the program had an 80 percent success rate, which he defined as not

relapsing during or after completing the program and aftercare.

The mother stated that after completing the RSAT program, she intends to find

a source for outside treatment and to live with her paternal grandparents in their

home. She had identified two potential substance abuse programs that she believed

to be state-funded. She said that she had not had any involvement with illegal drugs

since her December 2011 incarceration.

Moreover, during her incarceration, she attended weekly Alcoholics

Anonymous (AA) and NA meetings (the only such meetings available to her), earned

“trusty” status enabling her to work in the jail’s laundry, and took classes toward

completing her GED as well as other offered courses, including one that taught job

search skills. Although her last contact with the children was on April 29, 2011, she

said that she was told she could not have contact with them.

The mother’s paternal grandmother testified that she had a room in her house

prepared for the mother to live when she completed the RSAT program. The mother’s

grandfather and uncle also reside in the house. The grandmother said that she will

expect the mother to attend church with them, to get a job and to keep her room clean.

She also has insisted that the mother have nothing to do with her old community or

7 old friends. She would also welcome the children for visits in her home. She has been

in contact with the mother and believes she has changed. She has also seen the

children at church and said that they seem fine.

The statutory framework for the termination of parental rights sets out a two-

pronged test:

In the first prong, the court must decide whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-94 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

(Citation omitted.) In the Interest of R. N. H., 286 Ga. App. 737, 739-740 (650 SE2d

397) (2007). In determining whether a child is without proper parental care or control

when the child is not in the parent’s custody, the court may consider

whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o develop and maintain a parental

8 bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents[.]

(Emphasis supplied.) OCGA § 15–11–94 (b) (4) (C).

Here, the juvenile court found that the children were deprived in light of the

mother’s incarceration, unrehabilitated substance abuse, and lack of stable housing

and income. Because she was still incarcerated and had not yet begun the

rehabilitation program, the court found that this deprivation was likely to continue,

and will cause serious harm to the children due to their lack of a bond with her and

need for permanency. On this point, the court noted that the children have not seen

their mother since April 2011.

The juvenile court then found that termination of the mother’s parental rights

was proper under OCGA § 15-11-94 (b) (4) (B) (ii) in that “she has an excessive use

of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotics with

the effect of rendering her incapable of providing adequately for the children’s

physical, mental and emotional needs and moral condition;” under OCGA § 15-11-94

(b) (4) (C) (i) in that she failed to maintain a bond with her children; under OCGA §

15-11-94 (b) (4) (C) (ii) in that she failed to provide for the care and support of the

9 children as required by law or judicial decree; and under OCGA § 15-11-94 (b) (4)

(C) (iii) in that she had failed to comply with the court-ordered case plans designed

to reunite her with her children. With regard to latter ground, the court found that the

mother had not maintained stable housing or employment, had not successfully

completed a substance abuse treatment program and had not maintained meaningful

contact with the children.

The juvenile court also noted that the children were currently placed with

friends of the family, and were bonded to that family and doing well. Ultimately, the

court determined that termination of the mother’s parental rights would be in the

children’s best interest.

It is well settled that “[c]ompelling facts are required to terminate parental

rights.” (Citations omitted.) In Interest of H. L. T., 164 Ga. App. 517, 519 (298 SE2d

33) (1982). Further,

[w]e 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.

10 (Citations and punctuation omitted.) In the Interest of C. S., 319 Ga. App. 138, 144-

145 (1) (735 SE2d 140) (2012). See also In the Interest of T. E. T., 282 Ga. App. 269,

269–270 (638 SE2d 412) (2006); In the Interest of T. J. J., 258 Ga. App. 312, 314

(574 SE2d 387) (2002).

We find that the juvenile court’s findings regarding the mother’s parental

misconduct or inability are not supported by clear and convincing evidence. As an

initial matter, we note that DFACS filed the petition for termination of the mother’s

parental rights on April 23, 2012, less than one year after the children were taken

from the mother’s custody on April 29, 2011. Accordingly, the evidence does not

support the trial court’s findings that the mother failed to maintain a bond with her

children, failed to provide support and failed to comply with the DFACS case plans

for the requisite statutory period of “one year or longer prior to the filing of the

petition for termination of parental rights.” OCGA § 15-11-94 (b) (4) (C). In fact, the

record does not contain a copy of any case plan other than the non-reunification case

plans developed in January 2012, three months before the termination petition was

filed and after the mother was re-incarcerated.

11 Moreover, the record contains insufficient evidence to support the juvenile

court’s findings with regard to excessive or chronic unrehabilitated drug use.2

Although the juvenile court’s December 5, 2011 order found that the mother

“consistently” tested positive for the presence of illegal drugs, the record contains

only one reference, in a prior order, to a failed drug test, on August 26, 2011. An

earlier order indicated that the mother admitted that she had used illegal drugs a few

weeks before the police executed the search warrant on her mother’s house in April

2011. But the record contains no evidence, from the termination hearing or otherwise,

with regard to these two instances.

Other than evidence of her guilty plea to the April 2011 drug charge , the only

evidence at the termination hearing relating to the mother’s prior use of illegal drugs

came in response to the juvenile court’s question regarding a 2003 proceeding

involving a third child. The court asked the mother whether allegations in the 2003

petition that the mother used drugs at that time were true, and she replied, “I think

so.” When the juvenile court asked the mother’s grandmother the same question, she

stated that she did not know and that she had never seen the mother use drugs. And

2 We note that the record contains no evidence of any use of intoxicating liquors by the mother.

12 we note that the mother’s February 2012 conviction was treated as a first offense.

Additionally, the mother stated that she was attending weekly AA and NA meetings,

steps toward addressing her use of illegal drugs. She stated that she had not used

illegal drugs since her re-incarceration in December 2011, and DFACS presented no

evidence to counter this testimony.

Even if we consider the juvenile court’s recitation of evidence regarding the

prior two instances of drug use along with the evidence presented at the hearing, we

find that the record falls short of providing clear and convincing evidence to support

a finding of excessive or chronic unrehabilitated drug abuse.

Additionally, we find that the record lacks clear and convincing evidence to

support the juvenile court’s finding that the cause of the children’s deprivation was

likely to continue. Because the record does not contain any reunification case plan,

we have no evidence of the case plan goals other than the requirement that she seek

treatment for substance abuse. But it is unclear whether or when the mother may have

been directed to seek such services prior to the juvenile court’s September 12, 2011

order, which gave her less than two weeks to do so. A little over one month later, on

October 24, DFACS filed a motion to pursue a non-reunification plan. Therefore,

DFACS gave this mother less than four months from the time her children were taken

13 into its custody before beginning the process of making her loss of custody permanent

and less than one year before seeking to terminate her parental rights.

Although the mother failed to seek treatment before she was incarcerated,

while in jail, she took advantage of the only substance abuse treatment programs

available to her. She also worked toward her GED and held a “trusty” position in the

prison laundry. Moreover, shortly after the termination hearing, she was to begin

intensive treatment in a program with a high rate of success. After this six-month

inpatient program, aftercare was provided to help her achieve her treatment goals.

The mother had secured housing following her release from jail, where her children

were welcome. She had also participated in a program designed to help her obtain

employment after she was released. And although the mother had not had contact

with her children in over a year, she said she was told she could not contact them.

DFACS presented no evidence to contradict this testimony. Even though the mother

was slow to address her issues, by the time of the hearing she had made recognizable

progress, was scheduled to begin further intensive treatment a short time later, and

had identified concrete steps for the future. Under these circumstances, we find that

the juvenile court erred in determining that clear and convincing evidence existed to

support a finding that the children’s deprivation was likely to continue.

14 Accordingly, we reverse the trial court’s order granting the petition to terminate

the mother’s parental rights.

Judgment reversed. Andrews, P. J., and Dillard, J., concur.