In THE INTEREST OF T. K., CHILDREN (MOTHER)

• Court: Court of Appeals of Georgia
• Decided: March 11, 2026
• Docket: A25A1800
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., MARKLE and PADGETT, 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. https://www.gaappeals.us/rules

March 11, 2026

In the Court of Appeals of Georgia A25A1800. IN THE INTEREST OF T. K., et al.

DOYLE, Presiding Judge.

The mother of Ty. K. and Tr. K. appeals from the juvenile court’s order finding

the children to be dependent and awarding custody to the Berrien County Department

of Family and Children Services (“the Department”). The mother alleges that the

Department failed to present clear and convincing evidence that the children were

dependent or that she should not retain legal custody. For the reasons that follow, we

affirm.

“On appeal from an order finding a child to be a dependent child, we review the

juvenile court’s findings 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 the Interest of R. D., 346 Ga. App.

257, 259(1) (816 SE2d 132) (2018) (punctuation omitted). See also OCGA § 15-11-180

(“The petitioner shall have the burden of proving the allegations of a dependency

petition by clear and convincing evidence.”).

So viewed, the record shows that on July 10, 2024, the Department filed a

complaint as to the children, alleging that they were dependant as to the mother

because she tested positive for methamphetamine while at a hospital seven days

earlier. The complaint stated that around April 2024, the mother let the children live

with S. S., their paternal grandmother, but she did not have formal legal guardianship

of the children. It also stated that Ty. K. had been taken into custody of the

Department on two prior occasions (in 2015 and 2021), the second occasion also

resulting in Tr. K. being taken into custody. Both of the prior occasions were based

in part on the mother’s and deceased father’s positive drug screens. The complaint

also stated that the mother was living in her vehicle or in unsafe housing, and the

Department had not been able to locate her since she had left the hospital.

The complaint alleged that it would be contrary to the children’s best interests

for them to remain in the mother’s home because she could not be located, had tested

2 positive for methamphetamine, was reported to be living in unsafe conditions, and

could retake custody of the children from S. S. The trial court issued a temporary

order that the children be taken into custody of the Department, noting the facts as

alleged in the complaint and also stating that the children could not remain with S. S.

because her husband was alleged to have molested a step-daughter at some unknown

time.

Thereafter, the Department placed the children in separate foster homes and

prepared a non-reunification case plan on the basis that the mother had

unrehabilitated drug dependency issues, unstable housing, and no means to provide

for herself or the children. The plan stated that the children were taken because

“[d]ifficulty in locating the family led to emergency pickup.” Additionally, the mother

had admitted to “being in a [domestic violence] relationship,” had tested positive for

“meth and amphetamines,” and could not provide safe supervision or housing

stability.

After several continuances of the scheduled preliminary protective hearing, the

Department filed a dependency petition in February 2025, alleging that the mother

had tested positive at a hospital and told staff not to notify the Department. Per the

3 petition, the mother was living at a residential drug-treatment facility. A consent

preliminary protective hearing was held in February 2025, after which the juvenile

court entered an order, finding probable cause to believe that the children were

dependent as alleged in the petition.

On February 21, 2025, only the mother and S. S. testified at the dependency

hearing. The mother testified that her husband (the children’s father) died in 2022,

and after the July 2024 positive drug screen, she entered a short-term detox facility in

October 2024, before entering the residential treatment facility. She testified that she

previously spent a year in a residential treatment facility from 2022 to 2023 due to her

2021 case with the Department. The mother admitted that the current case was

opened in July 2024, after she tested positive for methamphetamine. She also

admitted that the first time Ty. K. had been taken into care was 2016, prior to Tr. K.’s

birth, and the mother admitted both prior dependency cases were for her substance

abuse.

With regard to the current case, the mother admitted that she was supposed to

go to meetings as a form of relapse prevention, but she failed to go because living on

her own after leaving the facility was overwhelming. When asked what led to her

4 relapse, she stated that she was still mourning the death of her husband. After leaving

the facility in 2023, the mother initially received housing assistance but began to have

difficulty with bills around January 2024. To save money, she moved in with her

brother, and his home was small and not as suitable for the children. As a result of her

issues with providing housing and income, she and S. S. agreed to have the children

live with S. S. The mother denied having relapsed while the children were in her care.

She testified that the children always were fed and had a safe place to sleep when they

lived with her, and she denied that the children ever slept in a vehicle.

The mother testified that she was drug tested routinely at the current facility,

and although there apparently was an issue with her prescribed medication causing a

“faint positive,” there was otherwise no evidence presented of a positive drug screen

outside of the July 2024 incident. The mother testified that she would be in-treatment

for six months, but in March, she would be able to work off-campus and was applying

for housing. She had visited with the children at least three times as allowed by the

program.

S. S. testified that at the time they were taken into custody in July 2024, the

children had been living with her since April 2024 because the mother did not have

5 stable housing. She testified that the children were doing well and enjoyed living with

her, and Ty. K. attended his normal public school. S. S. denied that the mother ever

came to the house under the influence of drugs. S. S. also denied that the children ever

told her that they had seen the mother use drugs, that they had slept in a vehicle while

in the mother’s care, or that they had witnessed the mother in a domestic violence

situation.

S. S. testified that when the Department came and took the children from her

care, Ty. K. was extremely upset. She testified that the Department told her that she

needed legal guardianship for the children to continue to stay with her. S. S. explained

that there had been no need for her to have formal guardianship when the children had

been placed with her during the mother’s other dependency cases. S. S. denied that

the mother had ever tried to take the children from S. S.’s care while the mother was

intoxicated, and S. S. frequently took the children to visit the mother.

On cross-examination, the Department asked S. S. about sexual abuse

allegations made against her husband, T. S.; S. S. acknowledged the allegation,

blaming it on her daughter’s then-husband’s coercion in retaliation for S. S. and T.

S. suggesting that the daughter should leave the then-husband. On redirect, S. S.

6 stated that the allegation was from over 35 years ago, and the children had been placed

with her twice by the Department despite that.

The juvenile court issued an order finding that the mother had admitted to a

positive drug test for methamphetamine while in the hospital, that she was in a

residential substance abuse program, and that the children had previously been in care

of the Department. The court found that the cause of the dependency was “the

mother’s unrehabilitated substance abuse,” that the children were dependent as

defined by OCGA § 15-11-2(22)(A) (a “dependent child” is one who “has been

abused or neglected and is in need of the protection of the court”), and that the

children were neglected or lacked supervision as to the mother. The court found that

no services were required prior to removal of the children because the Department

previously had provided the mother with services on two occasions, citing OCGA §

15-11-146(d). The mother has not challenged this last determination.

1. The mother first argues that the Department failed to introduce clear and

convincing evidence that the children were dependent because they were in safe and

stable housing with S. S.

7 Again, we review the juvenile court’s order in the light most favorable to

juvenile court’s ruling

to determine whether any rational trier of fact could have found by clear and convincing evidence that the [children were] deprived. 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 [children] whose well-being is threatened.

In the Interest of R. D., 346 Ga. App. at 259(1) (punctuation omitted). “[C]lear 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. M., 344 Ga. App. 838, 847(2) (811 SE2d 505) (2018) (punctuation

omitted). In the event that “the court’s judgment is based upon a stated fact for which

there is no evidence, it should be reversed.” In the Interest of V. G., 352 Ga. App. 404,

409(1)(a) (834 SE2d 901) (2019) (punctuation omitted).

“Under the most recent version of Georgia’s Juvenile Code, the juvenile court

may place a minor child in the protective custody of the Department where the State

8 shows, by clear and convincing evidence, that the child is a dependent child.” In the

Interest of T. S., 348 Ga. App. 263, 269 (820 SE2d 773) (2018) (punctuation omitted).

Pursuant to OCGA § 15-11-2(22)(A), a dependent child is one who, inter alia, “has

been ... neglected and is in need of the protection of the court.” “Neglect” is defined

as “[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[.]” OCGA § 15-11-2(48)(A) (2024).

Moreover, the record must contain “evidence of present dependency, not

merely past or potential future dependency.” In the Interest of K. M., 370 Ga. App.

390, 394 (897 SE2d 521) (2024). Additionally, “a finding of parental unfitness is

essential to support an adjudication of present dependency.” In the Interest of H. B.,

346 Ga. App. 163, 165(1) (816 SE2d 313) (2018). This Court has defined “unfitness”

on the part of a parent as “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.” In the Interest of A. J. H., 325 Ga. App. 848, 852

(755 SE2d 241) (2014) (citation modified).

9 At the hearing, the mother conceded that she had tested positive for

methamphetamine in July 2024, which triggered the Department’s decision to take

the children into emergency care. The mother also conceded that she was in a

residential treatment facility, so she was unable to take physical custody of the

children. This was the third time that the Department had taken Ty. K. into custody

and the second time the Department had taken Tr. K. into custody based in part on

the mother’s drug use, which is evidence of long-term unrehabilitated drug use

beginning in 2016. See In the Interest of J. L., 269 Ga. App. 226, 229 n.6 (603 SE2d

742) (2004) (collecting cases regarding the level at which parental drug use constitutes

sufficient evidence to support a finding of parental unfitness and, thus, dependency).

Compare In the Interest of K. M., 370 Ga. App. at 395–96 (holding that the record did

not support a finding that the parent’s drug use was excessive or established harm to

the children).

The record does show laudable behavior by the mother with her decision to

leave the children in the day-to-day care of S. S. when the mother found herself unable

to provide safe, stable housing around April 2024. Nevertheless, this testimony also

supported the juvenile court’s finding of neglect and lack of supervision as to the

10 mother because she had not been able to provide housing or material support for the

children from around April 2024, to the hearing in February 2025. See, e.g., In the

Interest of T. S., 348 Ga. App. at 269 (explaining that custody may be removed “if 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 ... incapability to care for the child” (emphasis supplied)).

Compare with In the Interest of A. W., 340 Ga. App. 406, 413–14(1)(b) (797 SE2d 655)

(2017) (reversing juvenile court dependency order because the record evidence of an

isolated six-week period of methamphetamine use without other evidence of neglect

was insufficient). Finally, although we agree that the record lacks clear and convincing

evidence that the children were in danger while in the care of S. S., based on the

testimony and considering the applicable standard of review, the mother has not

established error.

2. The mother also argues that even if the remainder of the determination is

supported by clear and convincing evidence, the trial court should have allowed her

to maintain legal custody of the children. Again, while we agree with the mother that

the record shows the children were well cared for in S. S.’s physical custody, the

11 court’s removal of the children from the mother’s legal and physical custody was

supported by clear and convincing evidence as explained in Division 1. See In the

Interest of T. S., 348 Ga. App. at 269. Accordingly, this argument does not establish

error as to the dependency order.

Judgment affirmed. Markle and Padgett, JJ., concur.