SECOND DIVISION BARNES, P. J., MCFADDEN 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 11, 2013
In the Court of Appeals of Georgia A12A2176. IN THE INTEREST OF D. J., a child.
MCMILLIAN, Judge.
Following the grant of her application for discretionary appeal, the mother of
D. J. appeals the juvenile court’s order terminating her parental rights. The mother
asserts that the evidence was insufficient to support the court’s order. We agree.
“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.” (Punctuation and footnote omitted.) In the Interest of D. L. T. C., 299
Ga. App. 765, 771 (684 SE2d 29) (2009). And “[t]he 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.” (Punctuation and footnote
omitted.) In the Interest of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006). “As a result, trial courts apply a heightened standard of proof, the clear and convincing
evidence standard” in termination proceedings. (Citations omitted.) In the Interest of
A. R. A. S., 278 Ga. App. 608, 609 (1) (629 SE2d 822) (2006). And on appeal, our
“standard of review is whether any rational trier of fact could have found by clear and
convincing evidence that the natural parent’s right to custody should be terminated.
This Court neither weighs evidence nor determines the credibility of witnesses.”
(Punctuation and footnotes omitted.) In the Interest of D. L. T. C., 299 Ga. App. at
765.
D. J. was born prematurely on September 11, 2009, and shelter care was
authorized for him on September 29, 2009. On October 1, 2009, the Department of
Family and Children’s Services (“DFCS”) filed a deprivation complaint, asserting
that the mother was homeless and refused to provide information regarding relatives.
The complaint also noted that the mother previously had three other children in DFCS
care. DFCS filed a deprivation petition on October 6, 2009, citing the issues raised
in the prior filings. The mother stipulated to the allegations of the petition, and the
juvenile court issued an order of deprivation and provisional disposition.
DFCS then established a case plan for the mother with the concurrent goals of
reunification and placement with a fit and willing relative, with the following goals:
2 1) the mother must attend and successfully complete a psychological evaluation; 2)
the mother must follow the recommendations of that evaluation; 3) the mother must
obtain and maintain safe and affordable housing with room enough for D. J.; and 4)
the mother must attend and successfully complete all parenting classes. The plan was
updated in April 2011 to add a specific requirement that the mother be “assessed by
AADD and participate with their recommendations.” AADD is identified in the
record both as the “Atlanta Alliance on Development Disabilities” and as “All About
Developmental Disabilities.”
Because the mother’s parental rights were terminated based upon a finding that
she had failed to comply with these goals, we address the juvenile court’s pre-
termination findings on this issue in some detail. Following a hearing, the juvenile
court signed a final disposition order on January 11, 2010, keeping D. J. in DFCS
custody. A review order entered May 19, 2010, continued custody in DFCS because
the mother had not completed her case plan goals, but the court found that she had
completed parenting classes. Following a permanency hearing, the juvenile court
issued an order on August 19, 2010, finding that the mother still lived in transitional
housing, visited with D. J. every Monday, participated with her parent aid, and had
submitted to a literacy test, which indicated that she reads above a fifth grade level.
3 The order further noted that DFCS was seeking assistance with AADD due to a
concern about whether the mother will be able to read D. J.’s prescriptions and
provide for the child’s special needs. The order also noted that the mother had not
completed her case plan goals, but showed “favorable case plan progression.” A
second permanency order, entered in October 2010, also noted the mother’s
“favorable progress” on her case plan goals.
A disposition order signed December 8, 2010, found that the mother had
substantially complied with her case plan, and the “only hurdle” concerned the
referral to AADD, which had not yet contacted the mother, although DFCS had made
the referral two months earlier. In addition, the order notes that the mother and the
biological father had obtained a one bedroom apartment, that the mother was
continuing her Monday visits, and that D. J. recognized her. By the December 10,
2010 review hearing, the mother had a scheduled meeting with AADD and was
working with an independent counselor to improve her “coping skills and rational
thinking.” But at the April 27, 2011 review hearing, an AADD representative testified
that the mother had been reluctant to allow AADD to visit her home, and thus AADD
had only been able to work with the mother on one occasion. Moreover, the mother
4 was reluctant to take suggestions from AADD, which had a number of resources to
help her with her reading skills and with caring for D. J.
DFCS filed a petition to terminate the mother’s parental rights on June 9, 2011,
based upon an allegation that she had failed to comply with her case plan for a period
in excess of one year prior to the filing of the petition. At the June 14, 2011 review,
however, the juvenile court found that the mother had been more receptive to
suggestions from her AADD providers and was more interactive in playing with D.
J. The court also found that the mother could read a prescription bottle and administer
the correct dosage, although the AADD worker had not had the opportunity to
observe the mother giving medication to D. J. because his caregivers did not bring
any medication to the visits. The juvenile court also found that the mother had
completed most of her case plan goals, including the parental assessment and
psychological evaluation, and she was working on obtaining suitable housing.
Moreover, the review order notes that “considering the mother’s progress, the
Department will reconsider its plan to terminate parental rights.”1 In a subsequent
1 The order also listed the case plan goal solely as reunification. DFCS confirmed the shift in case plan goal in a motion for extension, filed a few months later. But in the juvenile court’s order granting the motion, the court lists the plan goal as concurrent: reunification and adoption.
5 order, in addition to noting the mother’s previous case plan progress, the juvenile
court found that the mother had completed general parenting classes with AADD.
Following a review hearing in September 2011, the juvenile court found that the
mother’s one bedroom apartment was not sufficient for the child but noted that the
mother would be moving into a two bedroom apartment. The juvenile court also
found that the mother would not allow AADD into her home for monthly visits and
that DFCS had concerns as to whether the mother could administer D. J.’s breathing
treatments for his asthma, which was D. J.’s only special need other than a
requirement for physical therapy.
The termination hearing was held in January 2012, when D. J. was two years
old. The evidence showed that Grady Hospital first contacted DFCS about D. J.
because the mother was having trouble understanding why he needed a certain
formula and because she had no home to which to take him. DFCS had previous
contact with the mother in 2005 concerning her other three children, who were
removed from the mother’s custody and lived with a legal guardian at the time of the
hearing. In compliance with the case plan goals, the mother underwent a
psychological evaluation for parental fitness and literacy testing. She was diagnosed
with mild mental retardation, depressive disorder and a learning disability. A second
6 psychological evaluation confirmed the diagnosis of mild mental retardation and
depressive disorder and recommended family therapy if the mother and all her
children were to be reunited.2 These diagnoses ultimately resulted in her referral to
AADD.
The mother completed general parenting classes, but DFCS and AADD also
required her to attend specialized classes for parents with developmental disabilities.
But the mother was not consistent in attending these classes; she participated in only
two classes with AADD between March and November, and thus had not completed
the specialized classes by the time of the hearing. The mother also began classes for
a GED but dropped out with no explanation. The mother additionally received
individual counseling for a time, but she was unable to complete the program due to
funding issues.
2 DFCS introduced a copy of the second psychological evaluation performed on the mother at the hearing in lieu of the psychologist’s testimony. In termination proceedings, “all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. . . .” OCGA § 15-11-56 (a). See also In the Interest of A. T. H., 248 Ga. App. 570, 574 (2) n.15 (547 SE2d 299) (2001) (applying rule to termination proceedings).
7 One caseworker testified the mother was not cooperative with the first parent
aide DFCS provided, despite the fact that the juvenile court’s August 2010 order
found that she was participating with the aide. Beginning in 2011, however, AADD
began providing parental counseling and sometimes had trouble getting the mother
to cooperate. Marie Peters, the AADD outreach specialist, began making home visits
with the mother in April 2011. By the time of the hearing, however, she had visited
the mother’s home only four to five times, which was fewer than usual because the
mother was reluctant to allow Peters in her home.
The mother recently, however, allowed Peters to visit her new home. Although
the mother lived in a series of homes that were not acceptable to DFCS, at the time
of the hearing, she lived with the putative father in a two-bedroom townhouse, with
two full bathrooms. The mother had a room set aside for D. J., with a toddler bed. The
home was clean and had a fire extinguisher and two smoke alarms. During the visits
Peters had in the mother’s homes, they always appeared clean. Moreover, on one
occasion, the mother demonstrated an ability to administer different forms of
medicine, including using a syringe. She also demonstrated that she knows how to
use a breathing machine for her own asthma, but Peters never had the occasion to
observe her administer breathing treatments to D. J.
8 The mother’s sole independent source of income was a social security payment,
but it was sufficient to meet the stable income requirement of her case plan. The
putative father was employed with Labor Ready, after working as a cook at Waffle
House for 15 years. He is the payee on the mother’s SSI income of $720 per month,
and their rent is $550. In addition, he earns approximately $800 to $900 per month
in income from his job, and they also receive approximately $320 per month in food
stamps. Although the mother had failed to contribute to D. J.’s support, she brought
him toys at her visits and gifts for holidays and his birthday.
Even though the mother had complied in substantial part with the case plan, the
caseworkers had concerns about the mother’s ability to parent D. J., to read his
medication, to get him to appointments and to make sure he is safe and his needs are
met. They also had concerns as to whether the mother understood the severity of D.
J.’s medical issues. D. J. has asthma, and at the time of the hearing, he was
undergoing physical therapy to address issues he had with walking and wearing a
cranial helmet at night to re-shape his head. Sometimes the mother gave D. J. food
and liquids at her visits that would aggravate his asthma symptoms or cause him to
throw up.
9 All the witnesses conceded, however, that D. J. and his mother had a bond.
The mother consistently maintained her weekly visits with D. J. Some observers
testified that during these visits, the mother and D. J. were like two children playing
with each other, which raised some concerns about the mother’s ability to play a
mother-child role, but the caseworkers testified that the mother’s ability to nurture D.
J. improved over time and she has basic parenting skills such as the ability to change
a diaper. Peters testified, however, that although the mother loves D. J., but she has
not seen that “mother child bond, that nurturing.” She said the mother and child had
no more of a bond on the last visit than they did on the first. Peters conceded,
however, that the mother had the ability to perform daily living skills and could
administer medications by reading the label. She also handles her own medical
appointments.
At the time of the hearing, D. J. was still in foster care and had an adoptive
resource with the guardians for his older siblings.
Based upon this evidence, the juvenile court granted the petition to terminate
the mother’s and the putative father’s parental rights.3 In addition to identifying the
portions of the case plan completed by the mother and those still in progress, the
3 The rights of putative father are not the subject of this appeal.
10 juvenile court found that the mother scores in the extreme low range of intellectual
functioning and had no scores over the fifth grade, according to the second
psychological evaluation; “[t]he Department has concerns regarding the mother’s
inability to comprehend information with limited insight and her inability to make
rational decisions when it comes to raising a child with medical concerns;” “[t]he
mother’s cognitive function may impair her ability to properly care for the child’s
special medical needs;” her other three children are in the care of former foster
parents via guardianship; and according to Peters, although the mother and child had
a bond, the mother lacked the “nurturing component” of bonding or parenting needed
for the child. (Emphasis supplied.) From this, the juvenile court concluded that the
mother had failed to comply with a court-ordered plan designed to reunite her with
her child for a period in excess of one year prior to filing the petition for termination
of parental rights. The court also found that the mother failed to provide court-
ordered child support or other financial support for D. J. in excess of one year prior
to filing the petition. We conclude that these findings, and the evidence upon which
they are based, are insufficient to support the termination of the mother’s parental
rights.
11 The statutory framework for the termination of parental rights sets out a two-
pronged test:
Before terminating a parent’s rights, a juvenile court must employ a two- prong 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 bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the
12 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).
Accepting the prior findings that D. J. was a deprived child, the juvenile
court found that the deprivation was caused by the mother’s failure to comply
with the case plan for a period of one year or longer prior to the filing of the
termination petition. But even construing the evidence in the light most
favorable to the judgment below, the record does not support this finding by
clear and convincing evidence, and the termination order appears to ignore the
juvenile court’s prior findings regarding the mother’s case plan progress.
It is undisputed that the mother had completed most of her case plan
goals by the time the petition was filed in June 2011. The case plan required
that the mother submit to a psychological evaluation. She, in fact, submitted
to two such evaluations, one in January 2010 and the other in January 2011. By
February 25, 2010, the mother had also completed the requirement that she
attend a parenting class, and the trial court found she had completed a separate
general parenting class with AADD in its September 20, 2011order. The
13 mother also worked steadily toward achieving the requirement of stable
housing, first in transitional housing, then in two separate one bedroom
apartments, and by the hearing in January 2012, she had a two bedroom
apartment with a bedroom set up for D. J., which met DFCS’ requirements.
Thus, in August 2010, the juvenile court found that the mother was making
“favorable case plan progression,” and by December 2010, her “only hurdle”
was the referral to AADD. By June 14, 2011, five days after the petition was
filed, the court found that she had met most of her case plan goals, and DFCS
was reconsidering its plan to terminate her parental rights.
The only requirement that remained ongoing at the time of the hearing
was the requirement that the mother follow the recommendations arising from
the psychological evaluations.4 The record indicates that she had completed
some of these requirements, such as the parenting classes, and that
circumstances beyond her control prevented her from completing others. For
4 The 2010 psychological evaluation recommended working in a home environment with a counselor and a paraprofessional; that she find suitable housing, that she “may benefit”from participating in an adult reading program; and that visitation be supervised. The 2011 evaluation recommended family therapy if she were reunited with all her children; parenting classes; individual therapy; a psychiatric referral; a referral to the Georgia Department of Labor for job training; and a referral to an adult literacy class to help obtain her GED.
14 example, the mother participated in individual counseling until the funding ran
out, and DFCS never referred her to a psychiatrist as the second psychological
exam recommended. The mother also submitted to literacy testing, as
recommended by the exams, but Floyd testified that she was not required to
take literacy classes and a notation from a citizen’s review panel indicates that
she did not qualify for the literacy program. And although the mother never
completed the GED class, the psychological exam only recommended that she
be referred to the class. We could find nothing in the record to indicate that
completion of the class was added as a requirement to her case plan.
The specific requirement that the mother participate with AADD’s
recommendations was not added to her case plan until April 2011, only two
months before the petition was filed, and AADD first contacted her in
December 2010, only six months before the petition. Accordingly, the record
does not, and indeed cannot, contain evidence of a failure to comply with
AADD’s recommendations for one year or more prior to the filing of the
petition as required by the statute. Moreover, the record shows that the mother
was participating to some extent, albeit somewhat reluctantly, with AADD. For
example, the order from June 14, 2011, indicates that the mother was becoming
15 more receptive to suggestions from AADD, and she allowed Peters to inspect
her new townhome just prior to the hearing. Therefore, the juvenile court’s
conclusion that the mother failed to comply with the case plan for more than
a year prior to the filing of the termination petition is not supported by clear
and convincing evidence.
Similarly, the record lacks clear and convincing evidence, at least at this
time, to support the trial court’s finding that the cause of the deprivation is
likely to continue, or will not likely be remedied because the mother continued
to work on her case plan goals. Shortly before the hearing, she was able to
obtain suitable housing and she had allowed AADD to visit the home. And
although DFCS’ witnesses all expressed concern that the mother might not be
able to administer medicine to D. J., the evidence belied these concerns. She
demonstrated to Peters that she was perfectly capable of reading labels and
administering medicine in various ways, including through a syringe.
Moreover, she could use a breathing machine to treat her own asthma.
Although she had not demonstrated the ability to do the same for D. J., she was
never given the opportunity to do so.
16 Moreover, the witnesses’ anecdotal evidence about the mother – i.e.,
feeding the child too many snacks and playing with him in a childlike fashion
– does not amount to clear and convincing evidence that she will never be able
to parent her child. “[T]he clear and convincing standard ‘safeguards the high
value society places on the integrity of the family unit and helps eliminate the
risk that a factfinder might base his determination on a few isolated instances
of unusual conduct or idiosyncratic behavior.’” (Footnote omitted.) In the
Interest of S. L. E., 280 Ga. App. 145, 151 (1) (633 SE2d 454) (2006).
Although the juvenile court found that her cognitive functions may hamper her
ability to make rational decisions regarding D. J.’s medical care, these findings
were based solely on concerns voiced by lay witnesses, with no expert
testimony on the issue. We cannot say, therefore, that this findings are
supported by clear and convincing evidence. Cf. In the Interest of C. A., 316
Ga. App. 185, 189-191 (1) (728 SE2d 816) (2012) (reversing termination order
where no evidence presented of medically verifiable mental deficiency).
Further, although the evidence supported the juvenile court’s finding
that the mother had failed to provide court-ordered or other financial support
for D. J., the record indicates that such payments were never made a part of her
17 case plan, and no testimony was presented that she was ever told that she was
required to contribute financially. Although a parent’s obligation to support her
child exists, even in the absence of an order directing support,5 we do not
believe that this failure was sufficient to support a finding that the deprivation
was likely to continue in light of the mother’s other progress on her case plan.
See In the Interest of C. S., __ Ga. App. __ (1) (735 SE2d 140, 147) (2012).
The testimony demonstrated that the mother brought presents and food when
she had her weekly visits with D. J., and nothing in the record indicates that
she might not be able to contribute at least a de minimis monetary amount
toward her child’s support in the future.6
In sum, although the mother has not acted in perfect compliance with all
the recommendations given to her and has shown some reluctance to allow
5 See, e. g., In the Interest of T. B., 267 Ga. App. 484, 486-487 (1) (600 SE2d 432) (2004). 6 Additionally, the record lacks clear and convincing evidence that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child, at least at this time. Although the trial court made findings regarding the potential harm of continued foster care, the only evidence presented on this point was a question to Sullivan as to whether she knew “what foster-care drift is.” She replied that it is when a child lingers in foster care, he may have bonding or trust issues and may start acting out, but she stated that D. J. was not displaying any of these symptoms because he is just two years old.
18 AADD workers into her home, the evidence shows that she has made
substantial steps toward complying with DFCS’ requirements, that she has
maintained a bond with D. J., and that she continues to work on her case plan
goals.
As we have stated, termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue. In the instant case, the evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue. . . . Accordingly, we reverse the judgment and remand the case for establishment of a reunification plan for [the mother], subject to whatever disposition is warranted by future events and those occurring since the last termination hearing.
(Punctuation and citations omitted.) In the Interest of C. S., __ Ga. App. at __
(1) (735 SE2d at 147). See also In the Interest of M. A., 280 Ga. App. 854, 857
(1) (635 SE2d 223) (2006).7
Judgment reversed. McFadden, J., concurs. Barnes, P. J., concurs
specially.
7 Because we find that the evidence does not support the juvenile court’s findings under OCGA § 15–11–94 (b) (4) (A), we need not reach the court’s analysis regarding the child’s best interest under OCGA § 15–11–94 (a).
19 A12A2176. IN THE INTEREST OF D. J., a child.
BARNES, Presiding Judge, concurring specially.
While I agree with the outcome reached in this case, I do not agree with
all that is said by the majority. Therefore, this opinion decides only the issues
in this case and may not be cited as binding precedent. See Court of Appeals
Rule 33 (a). I write separately to emphasize that even if a parent has completed
most of his or her case plan and wishes to be part of the child’s life,
termination of parental rights still may be appropriate where there is evidence
that the parent has a medically verifiable mental disability that renders the
parent unable to care for the essential needs of the child at the time of the
hearing or for the foreseeable future. See OCGA § 15-11-94 (b) (4) (B) (i); In
the Interest of H. F. G., 281 Ga. App. 22, 26-27 (1) (635 SE2d 338) (2006).
The problem in the present termination case is that DFCS failed to present any
competent expert testimony to support and elaborate upon its allegations of the
mother’s cognitive impairment and its adverse impact on her ability to attend to the special medical needs of her child. See In the Interest of C. A., 316 Ga.
App. 185, 189-190 (728 SE2d 816) (2012). However, nothing prevents DFCS
from presenting such expert testimony in a future hearing if a new petition to
terminate the mother’s parental rights ultimately is filed in this case.