In the Interest of D. C.

602 S.E.2d 885, 268 Ga. App. 882
CourtCourt of Appeals of Georgia
DecidedAugust 3, 2004
DocketA04A1599
StatusPublished
Cited by7 cases

This text of 602 S.E.2d 885 (In the Interest of D. C.) 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 D. C., 602 S.E.2d 885, 268 Ga. App. 882 (Ga. Ct. App. 2004).

Opinion

Eldridge, Judge.

On January 20,2004, the Pickens County Department of Family and Children Services (“DFCS”) filed a deprivation petition under OCGA § 15-11-2 (8) (A) in the Juvenile Court of Pickens County against Jason Crowe, the legal father of D. C., age six, Darrell Padgett, the putative father of D. P. and D. P.,1 ages five and three respectively, and Tonya White, the children’s legal mother, for “domestic violence, inappropriate supervision, and substance abuse.” Following an adjudicatory hearing, the juvenile court found the children deprived and placed temporary legal custody of D. C. in DFCS.2 Upon the consent of the parties and subject to stipulated conditions,3 the juvenile court placed D. P. and D. P. in the temporary legal custody of Padgett. The mother appeals from the order finding the children deprived. She contends that the juvenile court erred by finding D. C. deprived upon preliminary findings that she lacked a stable home and had neither financial nor employment stability, such preliminary findings as not alleged; that the foregoing findings of the juvenile court as well as the finding that issues of domestic violence existed were unsupported by the evidence; and that the findings of the juvenile court were not in conformity with its rulings at trial. In [883]*883a second claim of error, the mother contends that the juvenile court erred in finding D. C. deprived for want of clear and convincing evidence that the acts complained of negatively impacted the child. We disagree and affirm.

In Georgia, a child is deprived in circumstances leaving the child without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. OCGA § 15-11-2 (8) (A).

It has been held that to authorize a termination of parental rights, or even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child. [Cits.]

In re D. H., 178 Ga. App. 119, 124 (342 SE2d 367) (1986). As a matter which lies within the sound discretion of the factfinder, a juvenile court’s deprivation finding will not be disturbed on appeal absent an abuse of discretion. In re D. C. & J. T. C., 176 Ga. App. 30, 32 (335 SE2d 148) (1985); see also In. the Interest of A. L. B., 245 Ga. App. 776, 777 (538 SE2d 557) (2000) (“[W]e are required to view the evidence in the light most favorable to the juvenile court’s order in determining whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights had been lost. Ours is not to weigh the evidence but to defer to the trial judge as the factfinder. [Cits.]”).

So viewing the evidence, the record reflects that on November 21, 2003, the police were called to D. C.’s home upon a report of domestic violence. On cross-examination at the adjudicatory hearing, the mother characterized the event as a “big disturbance” in which she had become loud in that the father had “trashed” the couple’s residence while “irrational” on drugs. DFCS opened its investigation of the family five days later upon a complaint that D. C. was home alone after getting off the bus from school. When case manager Rebecca Smith arrived at the parents’ residence, D. C. explained that he “waits for Mom” after school. The mother thereafter tested positive for marijuana and signed a safety plan in which she “agree [d] to refrain from drug use, to provide adequate adult supervision for her children at all times and to provide healthy food, at least a week’s worth at all times.” At school, D. C. later told school counselor, Jenny Hutto, that getting off the bus with no one at home left him scared.

[884]*884In the three months before the hearing, the mother failed to comply with the safety plan she had signed. On December 2, 2003, D. C. again arrived home from school to find no one to care for him, on this occasion taken in because of the cold by the manager of the apartment complex who observed him trying to get into his locked apartment. The mother applied for food stamps on January 6, 2004, testifying at the adjudicatory hearing that “[i]t was getting to where I had no food.” In this regard, case manager Smith testified that she found only a half a package of Oreo cookies, a carton of ice cream, and one packet of oatmeal in the home upon inspecting it on January 14, 2004. Smith had come to the residence on that date upon a complaint that the mother had left the children without a babysitter for two days. Only the father, just released from a drug rehabilitation program for an addiction to methamphetamines and barred from seeing the children alone by the mother since the November 21 domestic disturbance, was present. He explained that the mother “was supposed to be at work”; DFCS, however, was unable to confirm this status, the mother’s Citgo employer indicating that she had not come to work due to an accident as to which DFCS later could find no record. On this, DFCS took the children into custody. At school, school counselor Hutto noted a significant improvement in D. C., describing him as going from nonresponsive and possibly autistic to a “completely different child” and a normal kindergartner in every respect.

Otherwise, it is undisputed in the record that the mother had marijuana in her system on the date of the hearing, having failed a random drug test only three days before; that she had failed each of six random drug tests which DFCS administered to her under the safety plan, consistently testing positive for marijuana and, on one occasion, positive for Xanax as well as marijuana. Further, while the mother held three jobs in the three months before her hearing, she was terminated from the first for personal problems; was fired after a day in the second job; and had been employed as a Taco Bell server in the third for only the two days before her hearing began, a Saturday and a Sunday. And, although the mother testified at the juvenile court’s hearing that she had arranged for adequate housing within two weeks time, she did not have suitable housing at the time of her hearing, sleeping on a couch after moving in with a former boyfriend and his roommate following notice of eviction for nonpayment of rent at her apartment. Likewise, while the mother testified that she would try to free herself from drugs in DFCS-mandated drug and alcohol counseling, such counseling had not begun at the time of the hearing. Held:

1. The mother’s contention to the contrary notwithstanding, the juvenile court did not err in finding D. C. to be deprived for want of a stable residence, financial instability, and no stable employment in [885]*885the mother. While such matters were not expressly averred as the mother points out, DFCS nonetheless filed its deprivation petition under OCGA§ 15-11-2

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Bluebook (online)
602 S.E.2d 885, 268 Ga. App. 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-d-c-gactapp-2004.