In the Interest of D. M. W.

597 S.E.2d 531, 266 Ga. App. 456
CourtCourt of Appeals of Georgia
DecidedMarch 23, 2004
DocketA03A2558
StatusPublished
Cited by17 cases

This text of 597 S.E.2d 531 (In the Interest of D. M. W.) 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. M. W., 597 S.E.2d 531, 266 Ga. App. 456 (Ga. Ct. App. 2004).

Opinion

Mikell, Judge.

C. T., the biological mother of D. M. W, appeals the juvenile court’s order terminating her parental rights1 and awarding custody to the Henry County Department of Family and Children Services (“DFCS”). For the reasons set forth below, we affirm the termination order.

On appeal from a termination order, this Court views the evidence in the light most favorable to the appellee and determines whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.2 “We do not weigh the evidence and must defer to the trial judge as the factfinder.”3

So viewed, the evidence shows that C. T. was arrested when D. M. W. was six months old and charged with kidnapping and armed robbery. While C. T. remained incarcerated, D. M. W. was removed from the home of his maternal grandmother and placed in the custody of DFCS, pursuant to an order for shelter care entered by the juvenile court on August 23, 2001. At that time the child was nine months old. DFCS determined that his grandmother was not a suitable placement for the child, because she was elderly and did not have the mental or physical capacity to care for him. Meanwhile, the putative father had not legitimated D. M. W. On November 6, 2001, the juvenile court entered a 72-hour order, relating back to the August 23 hearing, finding D. M. W. to be deprived and continued DFCS’s [457]*457temporary custody of the child. C. T. was present at that hearing and stipulated that the child was deprived as she was incarcerated without bond.

On August 28, 2001, DFCS filed a deprivation petition concerning D. M. W. The juvenile court conducted a hearing on that petition on September 6, and again entered an order finding that D. M. W. was deprived. That order was never appealed. DFCS developed a 30-day reunification plan for C. T.,4 requiring her to maintain contact with D. M. W. and obtain and maintain a safe, secure, and stable home environment for the child and herself, resolve her legal issues, demonstrate her own mental stability, and cooperate and remain in contact with DFCS. The juvenile court approved the case plan. On November 8, however, C. T. was convicted of armed robbery and kidnapping and was sentenced to serve ten years in prison. Consequently, DFCS proposed a nonreunification plan for C. T. on February 21, 2002, but continued to develop reunification plans for the child’s biological and legal fathers. Neither C. T. nor either father completed any of the goals of their case plans.

DFCS filed a petition to terminate the rights of D. M. W.’s parents on July 8, 2002. At the hearing on the petition, the court heard the testimony of C. T., the DFCS case manager, and one of C. T.’s relatives. The trial court also admitted the written report of the child’s guardian ad litem, which recommended the termination of C. T.’s parental rights.

The caseworker, Leah Waters, testified that C. T. failed to comply with all of the goals of her reunification case plan. Although C. T. sent Waters five letters expressing her love for the child and her desire to be reconciled with him, the caseworker was unaware of any significant bond between the child and C. T. Waters further testified that C. T. had nine years left to serve on her sentence; that D. M. W. would be twelve years old upon her release; that the child would not be negatively affected by the termination of C. T.’s parental rights; that C. T. could not comply with a reunification case plan in the near future; that if the court terminated the child’s parents’ rights, DFCS’s permanency plan for him was adoption; that his foster parents wanted to adopt him; that after investigating the relatives identified by C. T., DFCS determined that none of them would be a suitable placement for D. M. W.; and that none of those relatives ever tried to visit the child.

C. T. testified that she had taken a nine-month parenting class while in prison and did not want to lose her rights to D. M. W.; that she did not know when she would be released from prison; that she [458]*458wanted the child to be placed with someone in her family; that prior to her arrest, D. M. W. and four of her other children, who ranged in age from three to nine years old, lived with her; that the other four children were currently with their father; that she gave birth to twins while in prison and they were currently living with one of her friends; that D. M. W. was six months old when she was arrested and that she had not seen him since he was removed from her grandmother’s custody in August 2001.

The juvenile court entered an order terminating C. T.’s parental rights on February 28, 2003. C. T. appeals.

Before terminating parental rights, a juvenile court must employ a two-prong test.5 First, the juvenile court must make a finding of parental misconduct or inability, which is proved by clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is causing the deprivation; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.6 “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.”7 C. T. enumerates as error only the trial court’s findings as to the first and third factors of the first prong of the test; however, she disputes its findings as to the second and fourth factors in her brief.

1. The juvenile court entered orders finding that D. M. W. was deprived on August 23, 2001, and on September 6, 2001, which C. T. did not appeal. “Therefore, [she] is bound by this finding of deprivation and the first factor is satisfied.”8

2. C. T. also argues that the trial court erred by finding that the lack of proper parental care or control caused the child’s deprivation. In so finding, “the court shall consider the various factors established by OCGA § 15-11-94 (b) (4) (B) and (C). OCGA § 15-11-94 (b) (4) (B) (iii) provides that the court shall consider the conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.”9 Though “[a] parent’s incarceration does not always compel the termination of parental rights, ... it can support a termination when [459]*459there are sufficient aggravating circumstances present.”10 One of the aggravating circumstances that may be considered is “whether the incarcerated parent has made an effort to communicate with the child and, despite imprisonment, maintain a parental bond in a meaningful, supportive[,] and parental manner.”11 Here, although C. T. sent letters to the caseworker expressing her love for the child, she did not make an effort to actually communicate directly with him after he was removed from C. T.’s grandmother’s custody. Another aggravating factor is C. T.’s failure to comply with goals in her case reunification plan.12

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Bluebook (online)
597 S.E.2d 531, 266 Ga. App. 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-d-m-w-gactapp-2004.