FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, 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. http://www.gaappeals.us/rules/
June 11, 2013
In the Court of Appeals of Georgia A13A0211. IN THE INTEREST OF L. K., a child.
MCFADDEN, Judge.
The mother of L. K. appeals from a juvenile court judgment finding that the
child is deprived and placing her in the custody of the Department of Family and
Children Services. Because there is not sufficient evidence to support the juvenile
court’s finding of deprivation, we reverse.
When reviewing a juvenile court’s finding of deprivation, this Court views the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.
In re D. S., 316 Ga. App. 296 (728 SE2d 890) (2012). (Citation omitted.) So viewed, the evidence shows that the 17-year-old mother and infant L. K.
lived with L. K.’s maternal grandmother in the grandmother’s residence. On
December 16, 2011, the department filed a deprivation petition alleging that both the
mother and L. K. have sickle cell anemia and that the mother is unable to meet her
infant daughter’s medical needs. On December 19, 2011, after a probable cause
hearing, the juvenile court dismissed the petition because there was no current
deprivation or medical neglect, but ordered the department to provide protective
services to the family for 120 days. Three days later, on December 22, 2011, the
mother was taken to the hospital, possibly due to illness related to her sickle cell
condition. A department caseworker was called to the hospital, where he learned that
the mother could not reach the grandmother. The day before, the grandmother had left
to go to Michigan for two weeks to care for a relative who had suffered a stroke. The
caseworker tried unsuccessfully to get in touch with the grandmother and other family
members to care for L. K. while the mother was in the hospital. The department then
obtained shelter care custody of both the mother and L. K. Thereafter, the department
filed the instant petition alleging that L. K. was deprived.
2 Under OCGA § 15-11-2 (8) (A), a child is deprived if he or she 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. The definition of a deprived child, as contained in OCGA § 15-11-2 (8), focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue. To authorize even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. An order temporarily transferring custody of a child based on alleged deprivation must be grounded upon a finding that the child is at the present time a deprived child, and a finding of parental unfitness is essential to support an adjudication of present deprivation.
(Citations and punctuation omitted; emphasis in original.) In the Interest of K. S., 271
Ga. App. 891, 892-893 (611 SE2d 150) (2005).
Here, the juvenile court concluded that “[t]he causes of the deprivation as to
the mother are: inability to provide the child with a home, care and support without
the assistance of the [d]epartment.” However, there was no evidence that the mother
was unable to provide a home; rather, the evidence unequivocally showed that the
mother and child lived with the grandmother in the grandmother’s home. While a
social worker voiced concern that the residence was in a senior citizen’s complex,
there was no evidence presented that the complex or home was an inappropriate or
3 inadequate place for the mother and child to reside. See In the Interest of E. M., 264
Ga. App. 277, 281 (590 SE2d 241) (2003) (reversing deprivation finding where,
contrary to juvenile court’s finding, evidence showed that father, with assistance of
others, “had always managed to put a roof over [child’s] head” and at the time of the
deprivation hearing had found at least temporary housing).
As for the mother’s inability to care for the child, there again was no clear and
convincing evidence of such inability and the department has cited none. On the
contrary, the social worker called as a witness by the department testified that the
mother is “a good mother” and that based on her observations over several months
she never had any concerns about abuse or neglect by the mother. A placement
worker also testified that she had no concerns about the mother’s ability to care for
the child, had seen no signs that the child is deprived, and had no concerns about
medical care because the mother “does a good job” and takes L. K. to the hospital if
something is wrong. Likewise, the department case worker testified that when he saw
the baby at the hospital he saw no signs of dehydration or malnourishment and that
the baby was appropriately dressed. Both the grandmother and the child’s father also
described the mother as an “excellent” mother.
4 The juvenile court further found that L. K. was without proper parental care
and supervision because “the child’s mother is a minor mother in the care of the
[d]epartment.” However, as this court has previously held, “we find no authority
providing that there is a presumption of deprivation of a child simply because the
child’s mother is also in [the department’s] care, and [the department] has cited
none.” In the Interest of S. D., 316 Ga. App. 86, 89 (2) (728 SE2d 749) (2012).
The juvenile court also found that the mother and child had been left in the
home without adequate food while the grandmother was in Michigan. Not only does
such a finding pertain to past, rather than present, deprivation, see In the Interest of
S. D., supra, but once again there was not clear and convincing evidence to support
the finding. While the department case worker initially testified that the mother had
told him that she had been left with no food, he later clarified that the mother did not
say that she had been left without food, but instead had said that she had no food
stamps or money. The only direct testimony concerning food in the house came from
the father, who testified that he had looked in the refrigerator and cabinets and seen
that there was food in the house. And although the juvenile court made no factual
finding about money, the case worker’s testimony that the mother had said she had
no money was contradicted by the grandmother’s testimony that money for the
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FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, 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. http://www.gaappeals.us/rules/
June 11, 2013
In the Court of Appeals of Georgia A13A0211. IN THE INTEREST OF L. K., a child.
MCFADDEN, Judge.
The mother of L. K. appeals from a juvenile court judgment finding that the
child is deprived and placing her in the custody of the Department of Family and
Children Services. Because there is not sufficient evidence to support the juvenile
court’s finding of deprivation, we reverse.
When reviewing a juvenile court’s finding of deprivation, this Court views the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.
In re D. S., 316 Ga. App. 296 (728 SE2d 890) (2012). (Citation omitted.) So viewed, the evidence shows that the 17-year-old mother and infant L. K.
lived with L. K.’s maternal grandmother in the grandmother’s residence. On
December 16, 2011, the department filed a deprivation petition alleging that both the
mother and L. K. have sickle cell anemia and that the mother is unable to meet her
infant daughter’s medical needs. On December 19, 2011, after a probable cause
hearing, the juvenile court dismissed the petition because there was no current
deprivation or medical neglect, but ordered the department to provide protective
services to the family for 120 days. Three days later, on December 22, 2011, the
mother was taken to the hospital, possibly due to illness related to her sickle cell
condition. A department caseworker was called to the hospital, where he learned that
the mother could not reach the grandmother. The day before, the grandmother had left
to go to Michigan for two weeks to care for a relative who had suffered a stroke. The
caseworker tried unsuccessfully to get in touch with the grandmother and other family
members to care for L. K. while the mother was in the hospital. The department then
obtained shelter care custody of both the mother and L. K. Thereafter, the department
filed the instant petition alleging that L. K. was deprived.
2 Under OCGA § 15-11-2 (8) (A), a child is deprived if he or she 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. The definition of a deprived child, as contained in OCGA § 15-11-2 (8), focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue. To authorize even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. An order temporarily transferring custody of a child based on alleged deprivation must be grounded upon a finding that the child is at the present time a deprived child, and a finding of parental unfitness is essential to support an adjudication of present deprivation.
(Citations and punctuation omitted; emphasis in original.) In the Interest of K. S., 271
Ga. App. 891, 892-893 (611 SE2d 150) (2005).
Here, the juvenile court concluded that “[t]he causes of the deprivation as to
the mother are: inability to provide the child with a home, care and support without
the assistance of the [d]epartment.” However, there was no evidence that the mother
was unable to provide a home; rather, the evidence unequivocally showed that the
mother and child lived with the grandmother in the grandmother’s home. While a
social worker voiced concern that the residence was in a senior citizen’s complex,
there was no evidence presented that the complex or home was an inappropriate or
3 inadequate place for the mother and child to reside. See In the Interest of E. M., 264
Ga. App. 277, 281 (590 SE2d 241) (2003) (reversing deprivation finding where,
contrary to juvenile court’s finding, evidence showed that father, with assistance of
others, “had always managed to put a roof over [child’s] head” and at the time of the
deprivation hearing had found at least temporary housing).
As for the mother’s inability to care for the child, there again was no clear and
convincing evidence of such inability and the department has cited none. On the
contrary, the social worker called as a witness by the department testified that the
mother is “a good mother” and that based on her observations over several months
she never had any concerns about abuse or neglect by the mother. A placement
worker also testified that she had no concerns about the mother’s ability to care for
the child, had seen no signs that the child is deprived, and had no concerns about
medical care because the mother “does a good job” and takes L. K. to the hospital if
something is wrong. Likewise, the department case worker testified that when he saw
the baby at the hospital he saw no signs of dehydration or malnourishment and that
the baby was appropriately dressed. Both the grandmother and the child’s father also
described the mother as an “excellent” mother.
4 The juvenile court further found that L. K. was without proper parental care
and supervision because “the child’s mother is a minor mother in the care of the
[d]epartment.” However, as this court has previously held, “we find no authority
providing that there is a presumption of deprivation of a child simply because the
child’s mother is also in [the department’s] care, and [the department] has cited
none.” In the Interest of S. D., 316 Ga. App. 86, 89 (2) (728 SE2d 749) (2012).
The juvenile court also found that the mother and child had been left in the
home without adequate food while the grandmother was in Michigan. Not only does
such a finding pertain to past, rather than present, deprivation, see In the Interest of
S. D., supra, but once again there was not clear and convincing evidence to support
the finding. While the department case worker initially testified that the mother had
told him that she had been left with no food, he later clarified that the mother did not
say that she had been left without food, but instead had said that she had no food
stamps or money. The only direct testimony concerning food in the house came from
the father, who testified that he had looked in the refrigerator and cabinets and seen
that there was food in the house. And although the juvenile court made no factual
finding about money, the case worker’s testimony that the mother had said she had
no money was contradicted by the grandmother’s testimony that money for the
5 mother and child had been left with a neighbor, and by the father’s testimony that he
had given the mother $150.
It appears from the evidence presented at the deprivation hearing, comments
by the juvenile court judge at the hearing and the final order, that in addition to the
issues discussed above, the juvenile court’s primary concern centered around the fact
that when the mother was hospitalized there was no relative available to take care of
L. K. As the juvenile court judge stated at the conclusion of the hearing, “[t]he mother
could not supervise[] the child because the mother was in care. There was nobody to
take care of the child.” However, it was undisputed that by the time of the deprivation
hearing the mother was no longer hospitalized, and the grandmother had returned
home and she wanted both the mother and L. K. to return to her home. Under the
circumstances of such a temporary emergency illness, where there is not clear and
convincing evidence that the child was at imminent risk of abuse or neglect other than
the risks arising from being without a caretaker, the appropriate remedy would have
been emergency placement of the child with the department, rather than a finding of
deprivation and removal of the child from the mother’s custody. See OCGA § 15-11-
14. (Authorizing the department to provide emergency care and supervision without
seeking a court order).
6 The 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. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.
(Citation omitted.) In the Interest of E. M., supra at 278. Here, contrary to the
determination of the juvenile court, the isolated instance of the child being without
supervision due to an emergency hospitalization does not constitute parental unfitness
authorizing the finding of deprivation and severance of the parent-child custodial
relationship. Accordingly, we reverse.
Judgment reversed. Doyle, P. J., and Boggs, J., concur.