In the Interest of D. W.

685 S.E.2d 311, 300 Ga. App. 438
CourtCourt of Appeals of Georgia
DecidedSeptember 23, 2009
DocketA09A0900
StatusPublished
Cited by7 cases

This text of 685 S.E.2d 311 (In the Interest of D. 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. W., 685 S.E.2d 311, 300 Ga. App. 438 (Ga. Ct. App. 2009).

Opinion

Phipps, Judge.

Through their child advocate attorney, D. W, C. W, and J. W. appeal the juvenile court’s denied of a petition brought by the Department of Family and Children Services (DFCS) to terminate their mother’s parental rights. They contend that the juvenile court erroneously determined that DFCS had presented insufficient evidence to grant the petition. The children also assert that, during the termination hearing, the judge expressed an opinion in violation of OCGA § 9-10-7. Because these challenges to the judgment are without merit, we affirm.

In July 2004, the children, then ages three years, two years, and nine months, were removed from their mother’s sole custody due to an unexplained fractured femur sustained by the youngest child and were placed in DFCS’s custody. The mother claimed that the injury had occurred while the children were in the care of a babysitter. The juvenile court adjudicated the children deprived based upon findings, inter alia, that the youngest child had sustained the injury; the mother had failed to ensure adequate supervision for her children in her absence; the children were at risk of physical, mental, and/or emotional harm in their mother’s custody; and their putative fathers had failed to legitimate them and to provide for them a home, care, and support.

The juvenile court ordered a reunification plan for the mother. The goals incorporated therein required the mother to complete parenting skills classes; submit to mental health evaluations and follow resulting recommendations; complete anger management classes; maintain stable housing; obtain appropriate employment; visit her children as arranged by DFCS; employ only nonharmful discipline methods for her children; and cooperate with DFCS.

In August 2007, however, DFCS petitioned the juvenile court to terminate, pursuant to OCGA § 15-11-94, the parental rights of the mother and the putative fathers. After a hearing several months later, the court granted the petition as to the children’s fathers; their parental rights are not at issue in this appeal. As to the children’s mother, the juvenile court denied and dismissed the petition.

[439]*4391. The children contend that, given the evidence presented, the juvenile court erred by refusing to terminate their mother’s parental rights.

OCGA § 15-11-94 sets forth a two-step process for terminating parental rights. First, the court must determine whether there is present clear and convincing evidence of parental misconduct or inability.1 If there is such evidence, the court shall then consider whether termination of parental rights is in the best interest of the child.2

The statute sets forth four requisite factors for a determination of parental misconduct or inability: (i) the child is deprived, as defined in OCGA § 15-11-2; (ii) the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) such cause of deprivation is likely to continue or will not likely be remedied; and (iv) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.3 Although the four factors are separately listed, they often overlap such that evidence of one factor proves or at least partially proves one or more of the other factors.4 And in this case, because the children were not in the mother’s custody, the court was required to consider whether, among other things,5 the mother without justifiable cause had failed significantly for a period of one year or longer prior to the filing of the termination petition: (a) to develop and maintain a parental bond with the children in a meaningful, supportive manner; and (b) to comply with a court-ordered plan designed to reunite the children with their mother.6

Although unartfully written, the order at issue reveals that the juvenile court’s decision not to terminate the mother’s parental rights was premised upon its determination that DFCS had failed to establish that the cause of the deprivation would continue. This determination, the order further reveals, was based upon the mother’s progress on her case plan and successful visitation with her children. Regarding the case plan, the court noted that the mother was employed and had housing. In addition, the court noted that the mother had completed parenting skills classes; completed anger management counseling; and submitted to a psychological evaluation, which results the court labeled “inconclusive.” Regarding the visitation, the court recognized that conflicting testimony had been given at [440]*440the hearing. The court acknowledged a child psychologist’s opinion that the visitations were harmful to the children, but noted also that the psychologist had neither witnessed a visitation nor observed the children in their mother’s presence. The court further cited testimony by DFCS caseworkers who had observed the visitations, noting that their testimony showed that the mother’s acts with her children were appropriate and that the children were happy to see their mother, that they ran to her, that they exchanged hugs, and that she brought her children snacks. Viewed in a light favorable to the judgment, the evidence supports the juvenile court’s findings concerning the mother’s progress on the case plan and successful visitation with her children.

The children maintain that termination was nevertheless warranted, citing what they claim showed, for example, that their mother never provided documentation to DFCS proving that she had obtained housing or employment; that their mother had not completed counseling recommended by a “Dr. Johnson”; that she had not visited them for approximately nine months, from about August 2005 to sometime in May 2006; and that she had struck C. W. on his leg during a visit in January 2007, which ended their visit together that day.

At the hearing, the mother conceded that she had not provided DFCS documentation of her housing, but the evidence adduced showed that the mother had orally notified DFCS of her residential addresses. Regarding her residential history, the evidence showed that, during the preceding eight years, the mother had moved twice and that both moves were imposed upon her because the property owners had plans to demolish and reconstruct the residential units. The mother also testified about her arrangement to move to a larger residential unit if she regained custody of her three children.

The mother also conceded that she had not provided documentation to DFCS as to each of the jobs she had worked since the time that her children were removed from her custody. However, she outlined at the hearing her pertinent employment history, which at times included two concurrent jobs.

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Cite This Page — Counsel Stack

Bluebook (online)
685 S.E.2d 311, 300 Ga. App. 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-d-w-gactapp-2009.