THIRD DIVISION DILLARD, P. J., GOBEIL and HODGES, 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
October 11, 2019
In the Court of Appeals of Georgia A19A1273. IN THE INTEREST OF M. S., a child.
GOBEIL, Judge.
Jessica Flood, the mother of M. S., appeals from the Whitfield County Juvenile
Court’s order finding M. S. dependent as to both parents1 and awarding temporary
custody to M. S.’s paternal grandparents. In her sole enumeration of error, Flood
argues that the dependency finding was not supported by clear and convincing
evidence. For the reasons explained below, we agree and reverse.
The record shows that on September 14, 2018, the Whitfield County
Department of Family and Children Services (“the Department”), filed a dependency
petition, alleging that M. S. (then 1 year old) was a dependent child in need of the
State’s protection for the following reasons: (1) Flood had other children that were
1 The father is not a party to this appeal. currently in foster care; (2) M. S.’s legal father, Justin Flood, was incarcerated, and
the location of M. S.’s putative biological father, Jeremy (“Jeremy”), was unknown;
(3) on August 2, 2018, a drug screening of Flood’s hair follicle was positive for
methamphetamine, cocaine, and benzodiazepine; (4) there were ongoing concerns
about the condition of Flood’s home, which was “extremely nasty”; (5) Flood was
recently evicted and was uncertain of where she would be living; (6) Flood had a
temporary protective order (“TPO”) against Jeremy due to domestic violence; and
(7) M. S. was previously “safety planned” to her paternal grandparents, Andrea and
Michael White, both of whom had been involved with M. S. her entire life, and were
approved by the Department for placement and willing to assume custody of M. S.
Accordingly, the Department requested that custody of M. S. be vested with the
paternal grandparents and that a guardian ad litem (“GAL”) be appointed. The
juvenile court subsequently appointed a GAL for M. S.
Two months later, a hearing on the dependency petition was held on November
29, 2018. The Department called Jeremy, M. S.’s case manager, and M. S.’s paternal
grandmother as witnesses. Jennifer King, a case manager with the Department,
testified that she became involved with M. S. on August 14, 2018, after the
Department received a report from a foster care case manager that “there were
2 concerns for the home conditions and [that] the mother had tested positive [for drugs]
on her hair follicle.” Specifically, a drug screening of Flood’s hair follicle in August
2018 tested positive for methamphetamine, cocaine, and benzodiazepine. A repeat
screening on October 2, 2018, tested positive for benzodiazepine and cocaine, but at
a lower level.2 King admitted that the Department had not conducted any further hair
follicle or urine drug screenings of Flood since October 2, 2018.
King also testified that Flood had “a lengthy history” with the Department
which she reviewed as part of her investigation, and that, at the time of her
investigation, there was a pending proceeding to terminate Flood’s parental rights to
another child.3 King testified that she also reviewed the allegations in the TPO with
Flood, and Flood confirmed that all of the allegations were true and that she was
“fearful” of Jeremy.
As part of her investigation, King performed a walk-through of Flood’s
apartment. King observed that the apartment was cluttered, there was no bed for M.
2 The Department tendered and the court admitted the drug screening results as exhibits P-3 and P-4, but they are not in the record on appeal. 3 However, King did not provide any further details about Flood’s “history” with the Department and no records or other evidence related to said history were submitted into evidence.
3 S. (Flood indicated that she had been sleeping on the couch with M. S.), “[t]here
wasn’t a whole lot of food in the home, and the kitchen was pretty messy with dishes
and food . . . [and King’s] feet [stuck] to the floor.” King indicated that M. S. was
crawling on the sticky floor, and that there was an odor coming from the apartment,
but she did not describe the odor. When King questioned Flood about the condition
of the apartment, Flood indicated that she had not cleaned because “she had been
working.” Flood denied that she was being evicted, and indicated that the action had
been dropped based on an agreement she reached with her landlord to pay extra
money each week until she “caught up” on the rent. However, King spoke with
Flood’s landlord and the landlord denied having any payment arrangement with
Flood. King informed Flood that the action had not been dropped and that Flood was
going to be evicted. Because Flood was being evicted and had nowhere to go with M.
S., King requested legal custody of M. S. on behalf of the Department, but the request
was denied.4 As an alternative, the Department safety planned M. S. to Jeremy’s
parents on August 14, 2018. King testified that M. S. already had a relationship with
the Whites, as “[t]hey had kept her several times for long periods.” King indicated
4 The record in this case is only 28 pages long and does not include any prior legal requests filed by the Department.
4 that the Department was requesting that legal custody of M. S. be transferred to the
Whites.
On cross-examination, King acknowledged that, a few weeks after being
evicted, Flood obtained a new apartment around September 18, 2018. A walkthrough
of the new apartment revealed that it met Department standards. Specifically, “[i]t
was clean and furnished[, including a baby bed,] and had some safety devices in
place.” When asked why the Department wanted to place M. S. with her paternal
grandparents, even though Flood had obtained a stable home and had a job, King
stated, without further elaboration, that the Department’s “concern [was] that [Flood]
has failed to maintain housing for long periods of time.”
M. S.’s putative biological father, Jeremy,5 testified that he was 25 years old,
M. S. was his only child, and he had never been married. He explained that he and
Flood lived together until she obtained a TPO against him in July 2018, although she
subsequently voluntarily dismissed the TPO. With regard to the allegations in the
TPO, Jeremy admitted that he had pushed Flood; broken several of her cell phones;
5 It was established at the beginning of the dependency hearing that a DNA test confirmed that Jeremy was M. S.’s biological father, but no legitimation had yet occurred. Until the legitimation takes place, Justin Flood, who was not present at the hearing, is still M. S.’s legal father.
5 taken her backpack and prevented her from getting it back; punched walls; held her
down; locked her in the house so she could not leave because he was trying to talk to
her; got angry when he was driving and tried to scare her; and attempted suicide by
hanging in front of her to scare her. However, he denied that he had ever been
physically violent; threatened her with a knife; pushed her down the stairs; choked
her; pulled her hair; punched holes in the walls; or threatened to drive their car off of
a mountain with her in it. Jeremy stated that Flood was never violent towards him and
never hit, pushed, or threatened him. He and Flood separated in mid-July 2018, “right
before” she obtained the TPO. He explained that since the dismissal of the TPO, the
two remained friends. When asked about whether he would consider reconciliation,
Jeremy stated “if it happens, it happens. If it don’t, it don’t.” Jeremy maintained that
his friendship with Flood was “good” and that they currently did not argue or fight.
He explained that since he and Flood separated in mid-July, he had been living with
various friends and traveling around the country on his friend’s motorcycle. He
currently lived with a friend in the apartment next door to Flood, and had been there
for approximately one month. He indicated that he had plans to get his own residence,
although he did not have a set timeline for doing so. He worked for Wood Hollow
6 Cabinets, and had been employed there for approximately two months. He indicated
that he was making approximately $300 to $500 a week.
Jeremy admitted that he had not been paying his parents any support even
though M. S. had been in their custody for the last few months. However, on at least
one occasion while M. S. was in his parents’ custody, he bought some baby wipes and
an outfit for her. Jeremy maintained that he told his parents to let him know “if they
needed anything” for M. S., but they had not asked him to help with anything. He
visited with M. S. every other Saturday at his parents’ home. Jeremy testified that he
planned to continue being a part of M. S.’s life, to pursue legitimation, and that he
wanted to do what was in M. S.’s best interest. Jeremy stated that he believed it was
in M. S.’s best interest to be with Flood.
The Department noted that Jeremy submitted to a urine and hair follicle drug
screening in October 2018. The urine test was positive for marijuana, and the hair
follicle test was positive for methamphetamines and morphine. Jeremy denied
knowing that his test was positive for morphine and denied using morphine. He
asserted that the last time he used methamphetamines was over a “year ago.” Jeremy
denied that Flood used methamphetamines or any drugs at all.
7 Andrea White (“Andrea”), M. S.’s paternal grandmother, testified that M. S.
was born June 15, 2017, and she had been very involved in M. S.’s life from birth.
She first starting keeping M. S. when she was approximately nine days old, and kept
her at least every weekend because it was important to Andrea and Michael that M. S.
go to church. However, they would drop M. S. off at Flood’s and Jeremy’s home
either Sunday night or on Monday. Andrea testified that beginning in January 2018,
they started keeping M. S. for longer periods of time, sometimes keeping her for two
or three weeks without any contact with either Flood or Jeremy. Andrea did not
elaborate as to how often these multi-week stays occurred. Rather, she stated that
generally Flood would drop M. S. off on Friday, the Whites would keep her through
the weekend, and Flood would pick her up on Monday. When asked whether they had
the child more than Flood, Andrea stated it was as if they shared “joint custody” of
M. S.
Andrea further testified that she had concerns about her son’s relationship with
Flood because he had anger issues, and he and Flood seemed to argue a lot.
Additionally, Flood told her that Jeremy had broken several of Flood’s phones, and
sometimes would prevent Flood from leaving the house after an argument. Andrea
confirmed that she was bonded with M. S. and she and her husband were willing to
8 care for M. S. until one or both of M. S.’s parents were stable. When asked about
whether she had “any concerns about drug use,” Andrea testified that she knew her
son used marijuana. She did not express any drug use concerns with regard to Flood.
Andrea confirmed that she had visited Flood’s old apartment. When asked
whether she had “any concerns about the cleanliness or neatness of the home,”
Andrea stated that “[t]he only thing that I honestly noticed was the spare bedroom had
a very bad like cat urine smell.” However, she explained that Flood and Jeremy did
not have a cat although they had a dog at one time, and had tried using air fresheners
and deodorizers to help with the smell. She testified that in her opinion, Flood’s and
Jeremy’s old apartment was “not unsafe,” but noted that they “never had a lot of food
in [the] home.”
On cross-examination, Andrea testified that she recently asked both Flood and
Jeremy if they would buy diapers and wipes for M. S., and that Jeremy bought some
baby wipes and an outfit. She also stated that Jeremy told her that he was the one that
did most of the care taking of M. S. when he and Flood were together. However,
Andrea confirmed that she had not personally witnessed this, and that most of her
interactions with Flood and Jeremy were at “a pick-up or a drop-off, . . . [s]o there
wasn’t a whole lot of witnessing who was doing what.” Andrea confirmed that since
9 M. S. had been placed with them, there had been no change in her. Rather, M. S. was
“just like she always was, quite happy, pleasant.”
After the Department rested its case, Flood moved to dismiss the dependency
petition, arguing that the Department failed to meet its burden of showing that M. S.
would be dependent if returned to her custody in light of the fact that the Department
admitted the mother’s current apartment was adequate, she had a job and stable
income, visited with M. S. regularly, and the Department had not conducted a recent
drug screening. Jeremy also joined in Flood’s motion. The court denied the motion,
noting that “[i]t is [a] fairly close” call, but that the court was concerned about many
of the domestic violence allegations in the TPO, and the fact that Flood and Jeremy
were now living next door to each other and had not demonstrated any resolution of
the difficulties in their relationship.
Flood testified that she had custody of M. S. from her birth in June 2017 until
August 2018. She explained that she moved into her new apartment on August 31,
2018, (a couple of weeks after being evicted), and the new apartment has two
bedrooms, one of which is a room for M. S. Flood confirmed that she had a baby bed
and clothes for M. S., and food in the home. Flood indicated that she works full-time
for WalMart from 1:00 to 10:00 p.m., and makes $11.00 an hour. If M. S. was
10 returned to her custody, Flood stated that she would put M. S. in daycare, and that
Flood’s mom (who lives in the same apartment complex as Flood) could watch M. S.
for the few hours between when the daycare closed and when Flood got off work.
Flood stated that she has a driver’s license and a vehicle, that there was nothing
“lacking” in her home for M. S., and that she wanted custody of M. S. returned to her.
Flood tendered without objection results from three separate hair follicle drug
screenings completed on August 27, 2018, October 8, 2018, and November 5, 2018,
respectively, which Flood voluntarily paid out of pocket to have completed by an
independent laboratory.6 The results for all three hair follicle screenings were
negative for any drugs. Flood denied ever using any drugs, and indicated that she
would be willing to take a urine test for the court immediately, if requested. Flood
stated that she visited with M. S. regularly, and took diapers and wipes to the paternal
grandparents when they asked her to do so.
On cross-examination, Flood acknowledged that in the three months since
M. S. was safety planned to the Whites, she had not paid them any child support, but
would have if they had asked her to do so. The Department then questioned Flood
6 Although these were admitted into evidence as Exhibits M-1, M-2, and M-3, they are not in the record on appeal.
11 about her plan for her mother to watch M. S. after the daycare closes, noting that the
Department “would not approve” her mother as a caregiver. Flood expressed surprise,
and stated that the last time that the Department “even looked at my mother was two
years ago.” The Department pointed out that Flood herself had been in foster care, but
Flood stated that was over 19 years ago, and although her mother was at one time an
alcoholic, she had completely stopped drinking in the past few months. Flood
confirmed that she did not use alcohol herself.
With regard to the TPO, Flood maintained that all of the allegations against
Jeremy were true. Nevertheless, she contended that, although their romantic
relationship was “toxic,” they had a “great” friendship and she was not afraid of
Jeremy anymore. She explained that she dropped the TPO because after they ended
their relationship, Jeremy moved out and there was no need for the TPO. Flood
maintained that M. S. was never present for any of their arguments and that she would
always send her to the grandparents’ home when there was conflict. Flood testified
that she did not depend on Jeremy for any type of support and could provide for M.
S. without any assistance from him. Flood then rested her case, and renewed her
motion to dismiss the petition.
12 The Department opposed the motion, emphasizing Flood’s positive drug
screenings, that she had a “long history” of instability and failed relationships and a
demonstrated inability to parent, had lied to the court in the past, and had “zero
credibility.” The Department emphasized that the evidence established that Jeremy
provided most of the care for M. S. when Flood had custody of her, and the
Department had “severe concerns” about M. S.’s safety if she were returned to
Flood’s custody.
In response, Flood’s counsel argued that there was no present drug issue as
evidenced by the three negative hair follicle screenings that Flood voluntarily
submitted to, using one of the same vendors as the Department. He also emphasized
that the Department had not completed a drug screening on Flood since October
2018, and the most recent one submitted to by Flood in November 2018 was negative.
Further, counsel emphasized that Flood and Jeremy no longer live together, and, thus,
there was no reason to think that M. S. would be in any danger in Flood’s custody.
Accordingly, counsel argued that M. S. was not dependent as of the date of the
hearing.
The GAL stated that he agreed with the Department regarding Flood’s
credibility, but that he also agreed with Flood’s counsel “regarding many of the issues
13 of current dependency as far as housing and job and that type of thing.” The GAL
acknowledged that this case was “a very close call,” but that he believed M. S. was
dependent because Flood relied “extensively” on the paternal grandmother to help
care for the child. Thus, the GAL had concerns about returning M. S. “carte blanche”
to Flood’s care, and he believed it was in M. S.’s best interest to remain in the
custody of the Whites. The GAL also expressed his opinion that he believed that a
case plan and some services to assist Flood should be put into place. The Department
stated that Flood had already received a case plan and “extensive services” in the past
related to her other children. Thus, given Flood’s history, in the Department’s
opinion, it was best for custody of M. S. to be vested in the paternal grandparents.
The court denied Flood’s motion to dismiss the petition.
Both the Department and Flood waived closing arguments. The GAL
recommended that M. S. be found dependent as to both parents, and that the Whites
be given custody. The court announced its finding that M. S. was dependent as to
both parents and that it was in her best interest to be in the custody of her paternal
grandparents.
Following the hearing, the juvenile court entered an order finding M. S.
dependent, concluding that she had been abused and/or neglected within the meaning
14 of OCGA § 15-11-2 (22). The court indicated that M. S. was dependent due to the
following conditions: (1) the mother had an “extensive history” with the Department,
as well as a history of unstable income and housing, and had other children in foster
care; (2) there were ongoing concerns about the dirty condition of the mother’s home;
(3) the mother tested positive on two Department drug screenings (although the court
acknowledged this evidence was controverted because the mother also produced
several negative drug screenings); (4) the mother and father had a history of domestic
violence, resulting in the mother obtaining a TPO against the father, which she later
dismissed, and, yet despite their volatile history, they lived next door to each other;
(5) the paternal grandmother testified that she kept M. S. on numerous occasions and
for long periods of time; and (6) Flood had no plan for daycare other than her own
mother who had not been approved by the Department and had a history of alcohol
issues. The court also went on to find that the Department had made reasonable
efforts to eliminate the need for removal of the child and for reunification, and noted
that Flood has two older children that had been removed from her care and for which
termination is pending. Accordingly, the court found that returning M. S. to the
custody of either parent was contrary to the welfare of M. S., and not in her best
interest. The court then ordered both parents to pay child support in the amount of
15 $45.00 per week, set forth case plan requirements that the parents would need to
satisfy before the court would consider returning custody, imposed supervised
visitation, and awarded temporary custody of M. S. to the Whites. The mother timely
appealed from this order.
On appeal from an order finding a child to be a dependent child, we review the juvenile court’s finding of dependency in the light most favorable to the lower court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child is dependent. In making this determination we neither weigh the evidence nor judge the credibility of the witnesses, but instead defer to the factual findings made by the juvenile court, bearing in mind that the juvenile court’s primary responsibility is to consider and protect the welfare of a child whose well-being is threatened.
In the Interest of R. D., 346 Ga. App. 257, 259 (1) (816 SE2d 132) (2018)
(punctuation and footnote omitted). “[Under] Georgia law, clear and convincing
evidence is an intermediate standard of proof which is greater than the preponderance
of the evidence standard ordinarily employed in civil proceedings, but less than the
reasonable doubt standard applicable in criminal proceedings.” In the Interest of K.
16 M., 344 Ga. App. 838, 847 (2) (811 SE2d 505) (2018) (citations and punctuation
omitted).
“Under the most recent version of Georgia’s Juvenile Code,[7] the juvenile
court may place a minor child in the protective custody of the Department where the
State shows, by clear and convincing evidence, that the child is a dependent child.”
In the Interest of H. B., 346 Ga. App. 163, 164 (1) (816 SE2d 313) (2018) (citation,
punctuation, and footnote omitted); see also OCGA § 15-11-180 (providing that the
State bears “the burden of proving the allegations of a dependency petition by clear
and convincing evidence”). Further, where as here, the child has already been
removed from the parent’s custody, “the correct inquiry for the juvenile court [is]
whether the child[] would be [dependent] if returned to the parent’s care and control
as of the date of the hearing.” In the Interest of S. M., 321 Ga. App. 827, 831 (743
SE2d 497) (2013) (citation, punctuation, and emphasis omitted).
7 Prior to the substantial revisions to the Juvenile Code in 2013, a juvenile court was authorized “to award custody to the Department of any minor child shown to be ‘deprived.’” In the Interest of S. C. S., 336 Ga. App. 236, 244, n.4 (784 SE2d 83) (2016). While the current version of the Juvenile Code uses the word “dependent” instead of “deprived,” the definition of a “dependent child” and a “deprived child” are virtually the same. Compare OCGA § 15-11-2 (8) (2013) with OCGA §§ 15-11-2 (22), (48) (2014). Thus, “we find that our previous decisions addressing the deprivation of a child are relevant to appeals involving the dependency of a child.” In the Interest of S. C. S., 336 Ga. App. at 244, n.4.
17 “The Juvenile Code defines ‘dependent child,’ in relevant part, as a child who
has been abused or neglected and is in need of the protection of the court.” In the
Interest of H. B., 346 Ga. App. at 164 (1) (citation and punctuation omitted). “Abuse”
is further defined as:
(A) [a]ny nonaccidental physical injury or physical injury which is inconsistent with the explanation given for it suffered by a child as the result of the acts or omissions of a person responsible for the care of a child; (B) [e]motional abuse; (C) [s]exual abuse or sexual exploitation; (D) [p]renatal abuse; or (E) [t]he commission of an act of family violence as defined in Code Section 19-13-1 in the presence of a child. . . .
OCGA § 15-11-2 (2). “Neglect,” in turn, is defined as: “(A) [t]he failure to provide
proper parental care or control, subsistence, education as required by law, or other
care or control necessary for a child’s physical, mental, or emotional health or morals;
[or] (B) [t]he failure to provide a child with adequate supervision necessary for such
child’s well-being. . . .” OCGA § 15-11-2 (48).
In determining whether a child is dependent, “[c]onsideration of past
misconduct is appropriate because the juvenile court is not required to reunite a child
with a parent in order to obtain current evidence of deprivation or neglect.
Nevertheless, the record must contain evidence of present dependency, not merely
18 past or potential future dependency.” In the Interest of H. B., 346 Ga. App. at 165 (1)
(citations and punctuation omitted).
Notably, even a temporary loss of custody is not authorized unless there is clear and convincing evidence that the dependency 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. Thus, only under compelling circumstances that are found to exist by such clear and convincing proof may a court sever, even temporarily, the parent-child custodial relationship. This is because the right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. Indeed, as our Supreme Court recently (and rightly) emphasized, the right of familial relations is among the inherent rights that are derived from the law of nature.
In the Interest of T. Y., ___ Ga. App. ___, ___ (__ SE2d__) (Case No. A19A0226
decided June 18, 2019); see also In the Interest of H. B., 346 Ga. App. at 165 (1)
(“Moreover, a finding of parental unfitness is essential to support an adjudication of
present dependency.”). “Parental unfitness, like dependency, also must be proved by
clear and convincing evidence.” In the Interest of H. B., 346 Ga. App. at 165 (1). To
be clear, “the juvenile court’s preference that custody of a child remain with someone
other than her natural parents is wholly without consequence, where the court lacks
19 clear and convincing evidence to support that decision.” In the Interest of K. M., 344
Ga. App. at 847 (2) (citation and punctuation omitted). With these legal principles in
mind, we turn to the case at hand.
In her sole enumeration of error, Flood argues that the juvenile court’s
determination that M. S. was presently dependent was not supported by clear and
convincing evidence. Even construing the evidence in the light most favorable to the
dependency determination, as we must on appeal, we agree with the mother that
several pertinent findings in the juvenile court’s order were not supported by clear
and convincing evidence in the limited record before us. Accordingly, for the reasons
that follow, we reverse.
As an initial matter, the record before us on appeal consists of 28 pages. The
limited nature of the record has frustrated our ability to review the juvenile court’s
findings. For instance, although the juvenile court referenced Flood’s “extensive
history” with the Department as one of the facts underpinning its dependency
determination, the record contains no evidence or testimony tending to establish any
details regarding that history. Similarly, although the court referenced Flood’s history
of unstable housing and income instability, which are appropriate factors to consider
in determining dependency, there was no evidence in the record with regard to these
20 matters. See In the Interest of M. M., 315 Ga. App. 673, 676-678 (2) (727 SE2d 279)
(2012) ( When established by clear and convincing evidence, a “[l]ack of stable
housing and lack of support due to a parent’s unstable or irregular employment are
appropriate factors in determining [dependency].”) (punctuation and footnote
omitted). Likewise, although it was undisputed that Flood has other children in foster
care (who were not at issue in this particular case), there was no evidence or
testimony proffered regarding those children, the circumstances that led to the
children’s placement in foster care, or how long those children have been in foster
care. Thus, to the extent the juvenile court based its dependency determination upon
Flood’s history with the Department, the court’s order was not supported by clear and
convincing evidence.
Next, as to the ongoing concerns regarding the cleanliness of Flood’s
apartment, the record established that those concerns related to Flood’s prior
residence from which she was evicted and from which M. S. was removed. The
Department acknowledged at the dependency petition hearing that, since being
evicted Flood had obtained a new residence, which met Department standards.
Specifically, the Department’s case manager testified that a walkthrough of the new
apartment revealed that “[i]t was clean and furnished[, including a baby bed,] and had
21 some safety devices in place.” Thus, the concerns regarding the cleanliness of Flood’s
old apartment had been remedied at the time of the hearing and could not serve as a
basis for a finding of present dependency. In the Interest of H. B., 346 Ga. App. at
165 (1) (while a court may consider past misconduct, “the record must contain
evidence of present dependency, not merely past or potential future dependency”)
(citation and punctuation omitted); see also In the Interest of M. M. R., 336 Ga. App.
14, 22-23 (1) (a) (783 SE2d 415) (2016) (physical precedent only) (holding in the
context of a termination proceeding, that the juvenile court’s present deprivation
finding was not supported by clear and convincing evidence where the record
established that the prior problematic living conditions and circumstances no longer
existed and the grandmother had since “secured stable, suitable housing,” which had
been evaluated by authorities).
With regard to Flood’s drug abuse (which the juvenile court concluded was the
main cause of M. S.’s dependency), it is undisputed that the Department produced
two positive hair follicle drug screenings from August 2018 and October 2018.
However, the juvenile court found this evidence was controverted because Flood
produced three negative hair follicle drug screenings from August, October, and
November 2018. There was no testimony presented to explain the discrepancies in
22 these results nor were these results in the record. Similarly, there was no other
testimony or evidence presented that tended to demonstrate that Flood had a present
drug abuse issue. On the contrary, Flood denied any drug use, and Jeremy also denied
any knowledge of drug use by Flood. Accordingly, and given the juvenile court’s
finding that the evidence concerning Flood’s present drug use was controverted, the
mother’s present drug abuse was not established by clear and convincing evidence.
See In the Interest of K. M., 344 Ga. App. at 847 (2) (“clear and convincing evidence
is an intermediate standard of proof which is greater than the preponderance of the
evidence standard ordinarily employed in civil proceedings, but less than the
reasonable doubt standard applicable in criminal proceedings”) (citations and
punctuation omitted); Cf. In the Interest of A. B., 274 Ga. App. 230, 232 (617 SE2d
189) (2005) (in the context of termination, holding that clear and convincing evidence
existed that the cause of the children’s deprivation was likely to continue because the
mother was highly likely to continue to use drugs, and had failed to achieve financial
and residential stability based on evidence that the mother had abused cocaine for 20
years, had attempted rehabilitation several times but relapsed each time, had been in-
and-out of jail on drug charges, and tested positive for cocaine six times in a two-year
period).
23 With regard to the history of domestic violence between Flood and Jeremy,
“[t]he commission of an act of family violence as defined in Code Section 19-13-1[8]
in the presence of a child” can constitute “abuse” for purposes of the dependency
statute. OCGA § 15-11-2 (2) (E). “[T]he term ‘presence’ means physically present or
able to see or hear.” Id. However, in this case there was no evidence that M. S. was
ever present for, witnessed, or heard any of the alleged instances of domestic
violence. Indeed, Flood testified that she always made sure that M. S. was not present
during any of the altercations. Accordingly, the parents’ history of domestic violence
does not clearly and convincingly establish that M. S. is presently dependent. See In
the Interest of K. D., 344 Ga. App. 423, 427-428 (1) (810 SE2d 193) (2018)
(reversing a determination of dependency as to the father where there was no
evidence that any of the instances of family violence occurred in the presence of the
children); In the Interest of M. L. C., 249 Ga. App. 435, 439 (2) (548 SE2d 137)
(2001) (holding that the trial court erred in finding the child deprived and in awarding
temporary custody to the Department where the evidence showed that the parents had
several violent altercations over the years, but there was no evidence that the child
8 Family violence is defined, in relevant part, to include acts between “persons who are parents of the same child, parents and children . . . or other persons living or formerly living in the same household.” OCGA § 19-13-1.
24 was present for the altercations or otherwise affected by them); In the Interest of
D. E. K., 236 Ga. App. 574, 577-578 (512 SE2d 690) (1999) (holding that the
mother’s relationship with an abusive husband, even when combined with other
factors such as prior drug use and a nomadic lifestyle was not sufficient to render the
child deprived so as to authorize temporary custody of the child to the Department).
Moreover, the record established that the domestic violence occurred when
Flood and Jeremy lived together. However, both Flood and Jeremy testified that they
no longer live together, and there was no testimony or other evidence showing any
instances of domestic violence since they ceased living together. Although the
juvenile court took issue with the fact that the parents now live next door to each
other, remain friends, and might consider entering into a romantic relationship again
in the future, those facts at most establish potential future dependency, not present
dependency. See In the Interest of H. B., 346 Ga. App. at 165 (1).
As part of its dependency determination, the juvenile court also relied on the
fact that the paternal grandmother kept M. S. on numerous occasions, sometimes for
several days at a time. However, given the facts of this case, this does not establish
a basis for a finding of dependency. Specifically, the grandmother, Andrea, testified
that she and her husband requested that they keep M. S. every weekend because it
25 was important to them that she attend church. She also testified that Flood would drop
M. S. off on Fridays and pick her up on Mondays, which demonstrates that Flood was
regularly involved in M. S.’s life. Although Andrea testified that there were instances
where she kept M. S. for two to three weeks at a time, there was no explanation of
how often this occurred or why. Further, there was no evidence or testimony
presented that Flood left M. S. with the paternal grandparents because she could not
provide for the needs of M. S. or otherwise care for the child. Thus, given the
testimony at the hearing, there was no basis for the court to infer that M. S. was
dependent as defined in OCGA § 15-11-2 (22), simply because M. S. frequently
stayed with the grandparents.
The juvenile court also based its dependency determination on the fact that, if
M. S. was returned to Flood’s custody, Flood had no established plan for daycare,
other than leaving M. S. with Flood’s mother, who had not been approved by the
Department and had a past history of alcohol abuse. However, Flood did not testify
that her primary source of care for M. S. would be her mother. Rather, Flood testified
that she intended to place M. S. in a daycare facility during her 1:00 to 10:00 pm
shift, and only have Flood’s mother watch M. S. for a couple of hours between when
the daycare closed and Flood’s shift ended. Furthermore, it appears that Flood was
26 not informed by the Department at any point prior to the hearing that her mother
would not be a suitable caregiver, and thus, was not afforded a reasonable opportunity
to come up with an alternative child care plan. Rather, the Department informed
Flood on cross-examination that the Department would not approve her mother as a
caregiver, and Flood pointed out that it had been over two years since the Department
had evaluated Flood’s mother and that her mother had quit drinking in the past few
months. Regardless, Flood’s lack of a complete child care plan merely establishes a
speculative possibility that M. S. might be dependent in the future if returned to her
custody, particularly when viewed in light of Flood’s testimony that she had suitable
housing (which the Department acknowledged) including a bed, food, and clothing
for M. S.; a job; stable income; and that she could provide for M. S. without Jeremy’s
assistance. As set forth above, a dependency determination cannot be based solely on
speculation that the child might be dependent in the future if returned to a parent’s
custody. See In the Interest of H. B., 346 Ga. App. at 165 (1).
Accordingly, in light of the limited record in this case, we conclude that the
juvenile court’s dependency determination was not supported by clear and convincing
evidence of present dependency. Consequently, we reverse.
Judgment reversed. Dillard, P. J., and Hodges, J., concur.