In the Interest of J. J. S.

741 S.E.2d 207, 321 Ga. App. 86
CourtCourt of Appeals of Georgia
DecidedMarch 29, 2013
DocketA12A2088
StatusPublished
Cited by2 cases

This text of 741 S.E.2d 207 (In the Interest of J. J. S.) 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 J. J. S., 741 S.E.2d 207, 321 Ga. App. 86 (Ga. Ct. App. 2013).

Opinion

PHIPPS, Presiding Judge.

A juvenile court terminated a mother’s parental rights with respect to her child, J. J. S., who was 12 years old at the time of the termination hearing. We granted the mother’s application for discretionary review. The mother contends that the juvenile court erred in terminating her parental rights because, concerning whether continued deprivation would cause or would be likely to cause serious physical, mental, emotional, or moral harm to J. J. S., the evidence was insufficient. We agree and reverse.

On appeal from an order terminating an individual’s parental rights, we do not determine witness credibility or weigh the evidence. We instead view the evidence in the light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should have been terminated.1

[87]*87So viewed, the evidence showed that in January 2009, the mother was arrested for alleged acts of misconduct toward her children, including J. J. S. and two siblings. All of the children were placed in protective custody. On October 13, 2009, the court entered an order which stated, among other things, that the Georgia Department of Human Resources Division of Family and Children Services (DFCS) had filed a motion to return custody of the children back to the mother, and that the court was terminating its jurisdiction and returning the children, including J. J. S., back to the mother, who, the court found, had substantially completed a case plan designed to reunite her with her children.

In February 2010, police received a report of genital mutilation, indicating that a part of the sexual organ of tifie mother’s youngest child (not J. J. S.) had been removed, and they arrested the mother on March 10, 2010.2 DFCS again took custody of the children and implemented a reunification case plan. The mother remained incarcerated after the March 2010 arrest. And on May 3, 2011, the state indicted the mother for 24 counts of cruelty to children for various acts allegedly committed against her children; the indicted charges were related to the January 2009 arrest. On June 6,2011, the mother entered a plea of guilty pursuant to North Carolina v. Alford,3 to six of the counts.4

Specifically, concerning J. J. S., the mother pleaded guilty to “choking [J. J. S.] and covering [the child]’s mouth with her hand so she couldn’t breathe,” and to “making [J. J. S.] stand in a corner for an extended period of time with her arms in the air.” As to the siblings, the mother pleaded guilty to two counts of scaring them with a mask, making one of them stand in a corner for an extended period of time with his arms in the air, and making another one eat hot peppers. The mother was sentenced to a total of fifteen years, with four years to be served in confinement and the balance on probation, with credit for time served since March 10, 2010. At some point, the state dismissed against the mother criminal charges in connection with the February 2010 genital mutilation allegations.

On June 17, 2011, DFCS filed a petition to terminate the mother’s parental rights to J. J. S. DFCS alleged that it had temporary [88]*88custody of J. J. S. by virtue of prior unappealed orders of the court, and that J. J. S. was residing at a group home. Particularly, DFCS alleged:

[J. J. S.] remained] deprived due to the mother’s incarceration resulting from her conviction of six counts of Cruelty to Children in the Second Degree and her history of instability, neglect and abuse. The mother has been incarcerated since March 10, 2010, and is sentenced to serve four years, with credit to be given for the time she has already served. Due to this incarceration, the mother has not been able to provide the basic means of support and parental care of this child, and her incarceration has been a negative effect on the relationship between the mother and her daughter.

A hearing on the termination petition held on September 20, 2011, and continued on October 10, 2011, showed the following. J. J. S. and her siblings had, throughout the years, been removed from the mother’s care on several occasions and placed in the custody of DFCS. The mother’s criminal history included a 2003 guilty plea to a charge of criminal attempt to commit theft by taking, a 2004 entry of a protective order against the mother for stalking, a 2010 guilty plea to a charge of battery, and the 2011 guilty plea to the child cruelty charges. On one occasion, the mother had threatened to harm police officers if they did not leave her property; the officers had approached the mother’s home to investigate child medical neglect allegations, that were later found to be unsubstantiated.

The evidence further showed that J. J. S. had significant behavioral issues. After the mother’s arrest in March 2010, DFCS had found a relative placement for the mother’s other children, but no suitable relative was willing to take custody of J. J. S. The child had been disruptive in several foster homes; she was placed in one therapeutic foster home, and she stole items and set several fires in that home. Her therapist reported that J. J. S. had “[v]erbal aggression towards peers and adults, [and] explosive temper outbursts.” At the time of the termination hearing, the child resided in a group home, suited to address her behavioral needs. J. J. S. has consistently informed caseworkers, therapists, and the juvenile court judge, that she does not want to be adopted and desires to be with her mother. Two therapists testified that, at this point, J. J. S. would likely sabotage any adoption effort. The child’s current DFCS case manager testified that currently, discussions about adoption were “on the back burner. We’re trying to get her behavior under control.” At the time of the termination hearing, no potential adoptive placement had been [89]*89found, and the experts could not predict when J. J. S. might become adoptable. One of the therapists testified: “Good, bad or indifferent, [J. J. S. was] very bonded with her mother.”

The mother contends that the juvenile court erred in terminating her parental rights because, concerning whether continued deprivation would cause or would be likely to cause serious physical, mental, emotional, or moral harm to J. J. S., the evidence was insufficient. We agree.

In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability.5 If there is, the court shall then consider whether termination of parental rights is in the best interest of the child.6 The court determines parental misconduct or inability by finding that (1) the child is a deprived child (defined in OCGA § 15-11-2 to mean a child who is 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);7 (2) the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived;8 (3) such cause of deprivation is likely to continue or will not likely be remedied;9

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Related

In the Interest of B. R. J. Children (Mother)
Court of Appeals of Georgia, 2018
In re Interest of B.R.J.
810 S.E.2d 630 (Court of Appeals of Georgia, 2018)

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Bluebook (online)
741 S.E.2d 207, 321 Ga. App. 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-j-j-s-gactapp-2013.