In the Interest of J. E.

711 S.E.2d 5, 309 Ga. App. 51, 2011 Fulton County D. Rep. 1133, 2011 Ga. App. LEXIS 318

• Court: Court of Appeals of Georgia
• Decided: March 30, 2011
• Docket: A10A2363
• Status: Published

Opinions

Andrews, Judge.

On appeal from a juvenile court’s order terminating a mother’s parental rights as to her child, J. E., the mother argues that the evidence was insufficient in that the record did not show that the child’s state of deprivation was likely to continue or that any continued deprivation would likely cause serious harm. See OCGA § 15-11-94 (b) (4) (A) (iii), (iv). The mother also argues that the trial court failed to take account of the positive relationship between her and the child. We disagree with these contentions and therefore affirm.

Our responsibility as an appellate court is to determine

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

So viewed, the record shows that on September 27, 2006, five days after J. E. was born, the Athens-Clarke County Department of Family and Children Services (“the Department”) filed a complaint alleging that J. E.’s mother, who was homeless at the time, had used cocaine throughout her pregnancy and to induce labor, and that both mother and child had tested positive for cocaine at the child’s birth. In October 2006, the Department filed a deprivation petition. After a hearing at which the mother stipulated to a finding of deprivation, the court awarded custody of J. E. to the Department. In March 2007, the juvenile court adopted the Department’s case plan, which required the mother to secure steady employment and housing, to attend parenting classes, to undergo a psychological evaluation, to visit J. E. twice weekly, to complete a drug-treatment program including random drug screening, and to remain drug- and alcohol-free for six months. A complaint for child support was filed more than a year later, but was not served on the mother because she could not be located. The mother has never paid any child support.

In May 2007, the juvenile court reviewed the case and found that the mother had failed to find employment or housing, that she had dropped out of drug treatment within a month, and that she tested positive for cocaine in five out of six drug screens. In September 2007, the mother pled guilty to a shoplifting charge and was sentenced to 60 days in jail, 12 months probation, and 20 hours of community service, which was to be suspended if she successfully completed a rehabilitation program. After the mother failed to report to her probation officer, however, the state court issued an order to show cause why sentence should not be imposed.

The juvenile court again reviewed the case in June 2008, at which time the mother again consented to a finding of deprivation. Although the mother was in compliance with the drug-treatment program and had tested negative for drugs since January 2008, the juvenile court found that she had not made enough progress with her case plan, including drug treatment and housing, to warrant a change in custody.

The juvenile court held another status hearing on September 12, 2008. With the support of her case manager, J. E.’s mother had returned to Athens and was living in the residential component of an outpatient drug-treatment facility, Advantage Behavior Health Systems Women’s Services (“Women’s Services”), in order to be closer to J. E. The case plan incorporated into the juvenile court’s order indicated that the mother had continued to have regular visitation with J. E. The case plan also noted, however, that the mother was not employed and had no suitable housing. The court again ordered that J. E. remain in her foster home.

In October 2008, the residential component of Women’s Services lost its funding and shut its doors, leaving the mother without shelter. With the support of her case manager, the mother moved into a transitional living facility for recovering addicts called Freedom From Bondage (“FFB”), which required that she obtain employment within two weeks of moving in. FFB’s policy further required that the mother pay a $200 entry fee and rent of $100 a week, attend two twelve-step recovery meetings a week, and abide by a curfew. After one month, the mother was asked to leave FFB because the only employment she was able to find required her to work evening hours in violation of the curfew and because she was unable to pay the entry fee and rent.

From mid-November 2008 through March 2009, J. E.’s mother lived in and out of homeless shelters and drifted between friends’ apartments. Although she worked briefly as a cashier in a grocery store, she was terminated after the balance in her cash register was short for two consecutive days. She was asked to submit to three drug screens but failed to do so.

In March 2009, the mother found employment at a fast-food restaurant but was laid off the following month for absenteeism. In April 2009, as she submitted strands of her hair for a drug test, she confessed to her case manager that she had used cocaine and marijuana since being out of treatment, and as recently as two weeks prior to the test. The test results confirmed the presence of cocaine.

On June 29, 2009, the Department filed a petition for termination of the mother’s parental rights in J. E. The hearing on the petition was held on September 23 and October 23 of that year.

A psychologist had assessed the mother in February 2007, at which time she told him that although she was in outpatient rehabilitation, she needed an inpatient program because it would restrict her freedom and thus her risk of relapse, and that she had been under the influence of drugs during some of her visits to the child. After the mother failed to appear at several scheduled follow-up appointments, she returned for a second session, after which the psychologist concluded that she suffered from cocaine dependence with psychological dependence and that she needed inpatient rather than outpatient treatment.

When asked at the termination hearing about the possibility of relapse in light of the facts that the mother had tested positive for cocaine in April 2009, the psychologist responded: “The single best predictor of future behavior is past behavior, so if we’re having an ongoing pattern of drug abuse or drug dependency, the likelihood is to continue.” When asked about the mother’s failure to obtain a steady job or housing, the psychologist said:

I would answer that similarly. If problems that were present when I first evaluated her continued to be present, . . . those are not good prognostic indicators of the likelihood that they will improve in the near future. I’m not saying that they won’t, just saying that they are not prognostically positive.

Under cross-examination, the psychologist admitted both the relevance of the mother’s present bond with J. E., whom he had never met, and the possibility that the mother could stay sober permanently. But he also confirmed his judgment that the mother would likely be unable to overcome her drug addiction:

She understands what a good parent is, yet she’s not able for some reason, or not willing[,] to make the changes that she prescribes. And so I don’t necessarily judge her on it, but... it sheds a light on how deep her problem[s] with drugs really are. And that shows to me that the April incident of ’09 outweighs today being sober, although today being sober is a good sign and I like to see that.

The guardian ad litem filed her report on the day before the second session of the termination hearing. The guardian reported inter alia that the mother had told her outpatient provider that she had smoked marijuana and inhaled at least a gram of cocaine every day from January through mid-May 2009 and that J. E. was more affectionate with her foster mother than with her natural mother. The guardian concluded that the mother’s parental rights in J. E. should be terminated.

The addiction counselor at the mother’s inpatient service testified that during her residency, the mother had violated a number of policies designed to keep the residents drug-free. In August 2009, only six weeks before the termination hearing, the mother visited an emergency room for a heart complaint, called a man she knew to be a drug dealer to meet her there, and obtained $20 from him. During the same visit to the hospital, the mother complained of neck pain and, without authorization, obtained a prescription, never filled, for muscle relaxers.

Although there was some evidence that J. E. had previously had difficulties with her mother’s visits, the juvenile court heard extensive testimony concerning the positive present relationship between the two, as well as the favorable conditions in the child’s foster home, including that the foster mother wished to adopt her permanently. The juvenile court then found as follows:

In spite of inconsistency in many areas of the mother’s life, she has visited regularly with her child, and they have a positive relationship. [The case manager] testified that the mother and the child interact appropriately and in a healthy way. Two different times during this case, [however, the case manager] was on the verge of requesting overnight visits, but each time, [he] was unable to follow through with his plans because of the mother’s circumstances. The mother is currently unable to provide the necessities of life for the child. The mother is in treatment for the fourth time, and this court would not be able to consider placing the child with her in a treatment program until there was demonstrable progress, which may take months. The child has never lived with this mother, or with any person other than her current foster parent.

(Emphasis supplied.) Later in its order, the juvenile court stated its legal conclusions that continued deprivation was likely, that such deprivation would likely cause serious harm, and that termination was in the best interests of the child. We granted the mother’s application for a discretionary appeal.

1. In order to terminate a parent’s rights as to a child, the juvenile court must find clear and convincing evidence of “parental misconduct or inability” in that

(i) The child is a deprived child, as such term is defined in Code Section 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.

OCGA § 15-11-94 (b) (4) (A). When a child is no longer in the custody of a parent, a court evaluating the question of proper care and control “shall [also] 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 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[.]

OCGA § 15-11-94 (b) (4) (C).

(a), (b) The mother does not dispute the juvenile court’s conclusion that J. E. was deprived at the time of the termination hearing and that the deprivation was caused by the mother’s lack of proper parental care or control. In the Interest of P. D. W., 296 Ga. App. 189, 191-193 (1) (a), (b) (674 SE2d 338) (2009) (unappealed finding of deprivation and “further showing” that “the conditions upon which this finding was based still exist at the time of the hearing on the termination petition” was sufficient to show that the child was deprived; failure to complete case plan, to pay child support, and to obtain suitable income or housing for two years until after filing of termination petition was also sufficient to show a lack of parental care or control).

(c) As to whether the “cause of [a child’s] deprivation is likely to continue,” OCGA § 15-11-94 (b) (4) (A) (iii), the question how much weight should be given to a parent’s recent improvements “is a question for the trier of fact. In considering a parent’s claims of recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” (Punctuation and footnote omitted.) In the Interest of A. T. H., 248 Ga. App. 570, 573 (1) (547 SE2d 299) (2001).

The evidence outlined above, including that the mother never paid any child support, never achieved stable housing or employment, was using at least a gram of cocaine a day for five of the nine months before the termination hearing, and initiated contact with a known drug dealer and wrongfully obtained a drug prescription only six weeks before that hearing, was sufficient to sustain the juvenile court’s conclusion that the causes of J. E.’s deprivation were likely to continue. See In the Interest of A. R., 302 Ga. App. 702, 709-710 (1) (c) (691 SE2d 402) (2010) (“even in the absence of an order directing [her] to pay a specific amount,” a mother’s failure to pay child support was “compelling evidence” that she was not an able parent and that the child’s deprivation was likely to continue) (punctuation omitted); In the Interest of K. A. S., 279 Ga. App. 643, 650-651 (1) (b), (c) (632 SE2d 433) (2006) (evidence including that mother “failed to complete two of the most important goals of her case plan, to obtain and maintain a stable, legal income and housing,” was sufficient to show that the deprivation was due to lack of parental care and control and that the causes of the deprivation were likely to continue); In the Interest of M. N. R., 282 Ga. App. 46, 47-48 (637 SE2d 777) (2006) (even assuming that a mother had stopped using drugs by the time of the termination hearing, evidence including her admission that she had not completed a drug treatment program she enrolled in six months before the hearing and had relapsed after completing an earlier program was sufficient to affirm the juvenile court’s judgment that the deprivation was likely to continue).

(d) The juvenile court was also entitled to conclude that the continued deprivation of J. E. was likely to cause serious harm to her.

OCGA § 15-11-94 (b) (4) (A) (iv) demands that the juvenile court determine whether “continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.” In the Interest of A. G., 287 Ga. App. 732, 735-736 (652 SE2d 616) (2007). As we noted some time ago, “it is not automatically true that a finding that deprivation is likely to continue will support a finding that continued deprivation will harm the child.” (Emphasis supplied.) In the Interest of J. T. W., 270 Ga. App. 26, 36-37 (2) (d) (606 SE2d 59) (2004). As the Department points out, however, the same facts authorizing a finding that deprivation is likely to continue may also authorize a finding, under the circumstances of an individual case, that the continued deprivation is likely to cause serious harm. See In the Interest of K. A. S., supra, 279 Ga. App. at 651-652 (1) (d).

[This Court] ha[s] held that evidence of a mother’s repeated failure to remain drug free and her failure to take the steps necessary to reunite with [her child] was sufficient to prove that the continued deprivation would cause the child serious physical, mental, emotional, or moral harm.

(Emphasis supplied.) In the Interest of M. N. R., supra, 282 Ga. App. at 48. Citing In the Interest of K. D. E., 288 Ga. App. 520 (654 SE2d 651) (2007), the mother argues that even if she is unable to care for her child, that fact alone cannot justify termination when the personal relationship between mother and child has remained or become substantially positive. We are not persuaded. The mother in K. D. E. had been drug-free for over two and a half years before the termination hearing in that case, and the child had lived with his mother for five years before being placed in the Department’s care, see id. at 525, whereas this mother had been drug-free for only a few months before the hearing and had never been the child’s primary caregiver since custody was awarded to the Department shortly after J. E.’s birth.

Some might read our whole-court opinion In the Interest of J. K., 278 Ga. App. 564 (629 SE2d 529) (2006), as rejecting any inquiry into the child’s present relationship with the natural parent, or as projecting the question of future harm back to the time and conditions at which the child was found deprived. See id. at 568 (2) (commenting that the present state of the parent-child relationship “is not the issue” before the juvenile court, and that “[t]he only other question [besides the likely continuation of deprivation] is would the children be. harmed by returning to the conditions that resulted in the original removal”). To the extent that J. K. can be read as standing for either of these propositions, it is disapproved. But even as so clarified, our law requires a juvenile court to consider not only the relationship between the parent and child at the time of the termination hearing, but also what might happen if the child were returned to the parent given the likelihood that the deprivation under which the child has been suffering would continue after a reunion with that parent.

“[I]t is well settled that children need permanence of home and emotional stability[,] or they are likely to suffer serious emotional problems.” In the Interest ofR. J. D. B., 305 Ga. App. 888, 895 (700 SE2d 898) (2010). If, as we have held above, this juvenile court was authorized to determine that the deprivation was likely to continue, it was also entitled to determine that no benefits to be obtained from a continuation of the parent-child relationship, however desirable in themselves, were sufficient to protect J. E. adequately from the harmful consequences of the mother’s possible or likely relapse into drug use and/or her continued failure to provide for ber child. The record before us, including the mother’s risk of relapsing into drug addiction, her failure to provide for J. E., and the child’s need for permanence, entitled the juvenile court to draw the conclusion that clear and convincing evidence showed that J. E.’s continued deprivation was likely to cause the child serious harm. OCGA § 15-11-94 (b) (4) (A) (iv); see In the Interest ofR. N, supra, 224 Ga. App. at 202, 204-205 (“any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody ha[d] been lost” where a psychologist predicted that a mother’s pattern of being overwhelmed by the return of her children was likely to repeat itself).

2. Given our holdings above, we are also persuaded that the juvenile court did not err when it concluded that termination of the mother’s parental rights was in the best interest of J. E., considering the child’s physical, mental, emotional, and moral condition and her “need for a secure and stable home.” OCGA § 15-11-94 (a). “The same evidence showing parental misconduct or inability may, and here does, establish this requirement.” (Citation and punctuation omitted.) In the Interest of A. C., 272 Ga. App. 165, 168 (2) (611 SE2d 766) (2005); In the Interest ofM. L. P, 236 Ga. App. 504, 510 (1) (d) (512 SE2d 652) (1999) (juvenile court has broad discretion in determining how the interest of the child is best served).

Judgment affirmed.

Ellington, C. J., Smith, P. J., Miller, P J., Phipps, P. J., Mikell, Adams, Doyle and McFadden, JJ., concur. Blackwell, J., concurs in the judgment and in all divisions except Division 1 (d). Barnes, P. J., concurs specially and in the judgment only. Dillard, J., dissents.