FIRST DIVISION DOYLE, C. J., ANDREWS, P. J., and RAY, J.
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 10, 2016
In the Court of Appeals of Georgia A16A0231. IN THE INTEREST OF O. B. et al., children. A16A0383. IN THE INTEREST OF T. W., a child.
ANDREWS, Presiding Judge.
In Case No. A16A0231, the mother of O. B. and T. W. (minor children) appeals
from the order of the Juvenile Court of Douglas County terminating her parental
rights to the children, and in Case No. A16A0383, the father of T. W. appeals from
the same order terminating his parental rights in the child. We consolidate these
related cases for consideration in this opinion. Because the termination petition in
both cases was filed in 2013, the former version of the Juvenile Code remains
applicable in both cases. Ga. L. 2013, p. 294, § 5-1 (the new Juvenile Code applies
to juvenile proceedings commenced on or after January 1, 2014).
Termination of parental rights pursuant to [former] OCGA § 15- 11-94 requires a two-step process. First, the court must determine under [former] OCGA § 15-11-94 (a) “whether there is present clear and convincing evidence of parental misconduct or inability.” Parental misconduct or inability is established where the court finds clear and convincing evidence of the four factors set forth in [former] OCGA § 15-11-94 (b) (4) (A): (i) The child is a deprived child, as such term is defined in [former] 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. Second, the court must determine under [former] OCGA § 15-11-94 (a) “whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” On appeal from the court’s decision to terminate parental rights under [former] OCGA § 15-11-94, we review the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parental rights should be terminated. In the Interest of A. D. I., 291 Ga. App. 190, 191 (661 SE2d 606) (2008). We do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the court’s factfinding and affirm unless the appellate standard is not met. In the Interest of C. R. G., 272 Ga. App. 161, 162 (611 SE2d 784) (2005).
In the Interest of T. C., 302 Ga. App. 693, 693-694 (691 SE2d 603) (2010). Applying
these principles we find: (1) in Case No. A16A0231, the evidence was sufficient to
support the court’s termination of the mother’s parental rights in O. B. and T. W., and
2 we affirm; and (2) in Case No A16A0383, the evidence was insufficient to support
the court’s termination of the father’s parental rights in T. W., and we reverse.
Case No. A16A0231
1. The mother of O. B. and T. W. contends that the evidence was insufficient
to support the juvenile court’s December 2014 order terminating her parental rights
in the children. She claims there was a lack of clear and convincing evidence to
support the court’s findings: (1) that the deprivation suffered by the children was
likely to continue; and (2) that the continued deprivation will cause or is likely to
cause the children to suffer serious physical, mental, or emotional harm.
The mother does not contest the juvenile court’s findings by clear and
convincing evidence that O. B. and T. W. are deprived children as set forth in former
OCGA § 15-11-2, and that the cause of the children’s status as deprived is the
mother’s lack of proper parental care or control. Former OCGA § 15-11-94 (b) (4)
(A) (i), (ii). In support of those uncontested findings, the court’s order terminating the
mother’s parental rights cites to evidence produced at the hearing on the termination
petition (filed by the Georgia Department of Human Services acting through the
Douglas County Department of Family & Children Services (the Department)) which
showed the following:
3 O. B. and T. W. were removed from the mother’s custody and placed in foster
care in November 2011, and both children were subsequently adjudicated deprived
suffering from severe medical neglect and repeated exposure to numerous acts of
domestic violence. The children’s deprivation was due primarily to the mother’s
mental illness and failure to take prescribed medication to address that illness. The
mother suffers from mental illness diagnosed by a licensed psychologist as bipolar
illness with psychotic features and possible schizophrenia and post traumatic stress
disorder caused by exposure to domestic violence as a child. The psychologist who
evaluated and diagnosed the mother described her appearance as disheveled and her
attitude as hostile and confrontational. When not taking her medications, the mother
reports that she is homicidal and hears voices in her head. The mother has a history
of domestic violence and was convicted of aggravated assault committed against the
father of T. W. After the children were placed in the custody of the Department, the
mother married a man who the juvenile court had prohibited from having contact with
the children because of violent interactions with the children. The mother did not
disclose the marriage until after the termination hearing had commenced, and then
informed the court that she had no feelings for the man and did not know why she
married him. The psychologist concluded that the mother needed psychiatric care for
4 her mental illness, medication management, and therapy to enable her to understand
the needs of the children and how to care for them. The psychologist found that the
children were at risk of physical and emotional abuse if put in the mother’s care, and
that any visitation with the mother should be supervised to protect the children from
this risk. During more than 30 months she was given to work on a reunification case
plan, the mother failed to comply with the requirements of the plan – she failed to
comply with orders for psychiatric treatment, medication management, and parenting
education. The court found that the mother had demonstrated no progress through the
requirements for reunification with the children, and that the children remained
deprived and at risk because of the mother’s out-of-control behavior caused by the
untreated mental illness.
As set forth above, the mother does not contest that there was clear and
convincing evidence to support the court’s first two findings under former OCGA §
15-11-94 (b) (4) (A) (i) and (ii) – that O. B. and T. W. are deprived, and that lack of
proper parental care and control because of her mental illness is the cause of the
deprivation. Having conceded evidentiary support for those findings, we find no merit
to the mother’s contention that the court erred by also finding clear and convincing
evidence to support its third and fourth findings under former OCGA § 15-11-94 (b)
5 (4) (A) (iii) and (iv) – that the deprivation is likely to continue and that the continued
deprivation will cause the children serious physical, emotional, and moral harm. The
finding that the deprivation was likely to continue was supported by evidence that,
for a period of more than 30 months, the mother failed or refused to cooperate with
the Department to implement the reunification plan. In the Interest of A. K., 272 Ga.
App. 429, 436 (612 SE2d 581) (2005). As to the finding that the continued
deprivation will cause serious physical, emotional and moral harm to the children, the
court considers whether the children will suffer serious harm if returned to the
mother’s custody given the likelihood that the deprivation would continue. In the
Interest of J. E., 309 Ga. App. 51, 58 (711 SE2d 5) (2011). The evidence considered
by the court in support of the first three findings also supported the court’s finding
that continued deprivation in the mother’s custody would seriously harm the children.
In the Interest of B. J. F., 276 Ga. App. 437, 442 (623 SE2d 547) (2005). Finally, the
mother does not contest the court’s finding under former OCGA § 15-11-94 (a) that,
considering the physical, emotional, and moral needs of the children (including the
need for a secure and stable home), termination of the mother’s parental rights is in
the best interests of the children. The evidence was sufficient to support the juvenile
court’s order terminating the mother’s parental rights in O. B. and T. W.
6 2. The mother claims that the juvenile court verbally “suspended” evidence in
the termination case at a motion hearing, and then erred by subsequently allowing
evidence to be introduced and considered in the case. It is unclear what the court
intended by referring to “suspended” evidence, but the record shows that the
termination case subsequently proceeded with the introduction of evidence and the
participation by all the parties including the mother who presented her case and
introduced evidence. The mother has failed to demonstrate error or any harm resulting
from the alleged error.
3. The mother contends that the juvenile court erred by giving legal effect to
various “nunc pro tunc” orders. The mother apparently refers to the same “nunc pro
tunc” orders which she contended the juvenile court erroneously found had legal
effect in the court’s prior December 2013 judgment finding the children were
deprived. The mother filed a prior appeal to this Court from the deprivation order, and
in an unpublished opinion – In the Interest of O. B., 331 Ga. App. XXVI (2015) – we
affirmed finding that the evidence presented at the deprivation hearing was sufficient
to support the deprivation order, and that the alleged error regarding “nunc pro tunc”
orders presented no basis for reversal. In the present appeal, the mother does not
contest the sufficiency of the evidence supporting the court’s findings that the
7 children are deprived and the deprivation was caused by lack of parental care and
control. We find that, regardless of the legal effect of the “nunc pro tunc” orders,
there was clear and convincing evidence supporting the juvenile court’s termination
of the mother’s parental rights, and that this alleged error provides no basis for
reversal.
4. The Department’s termination petition, filed in November 2013, sought to
not only to terminate the mother’s parental rights in O. B. and T. W., but also three
additional minor children, T. K, K. M., and K. M. The mother contends the juvenile
court erred by dismissing the termination petition as to T. K., K. M., and K. M.
The record shows that, during the hearing on the termination petition, the
juvenile court signed an order on October 14, 2014 which dismissed the Department’s
termination petition as to T. K., K. M., and K. M. and gave custody of those children
to their fathers. Although the Department opposed the dismissal, the mother (through
counsel) consented. The mother now contends that the dismissal order “in essence”
terminated her parental rights in the three children without a hearing and without
giving her an opportunity to appeal the decision. The juvenile court’s dismissal order
did not terminate the mother’s parental rights in the three children, and the record
8 shows she filed no appeal from the dismissal because she consented to it. We find no
error.
Case No. A16A0383
5. The father of T. W. contends that there was a lack of clear and convincing
evidence sufficient to support the juvenile court’s order terminating his parental rights
on the basis of parental misconduct or inability under former OCGA § 15-11-94 (a).
The juvenile court terminated the father’s parental rights, not on the basis of
parental misconduct, but solely “based upon parental inability.” In support of the
parental inability ruling, the court’s termination order found the following facts: The
father had regular contact with T. W. in Arkansas (where the father resides) until his
relationship with the mother ended, and the mother moved with T. W. from Arkansas
to Georgia. At that point, the father’s contact with the child was limited because he
feared contact with the mother, who had been convicted of aggravated assault against
him, and he did not have the financial resources to hire legal counsel to assert rights
to the child. The father legitimated T. W. in February 2013 (after T. W. was placed
in the Department’s custody), and the father exercised visitation with T. W. when he
traveled from Arkansas to attend juvenile court hearings in Georgia. The father is
currently married, and he and his wife have two minor children. The father receives
9 disability income “based upon his intellectual functioning classified as mental
retardation,” and the father’s wife receives disability income for impaired vision,
giving them a total disability income of $1,369.00 per month. The father “functions
well despite his disability,” is able to supplement his disability income, and “provides
for his family of four.” The father’s “children and wife come to Court with him and
are well nourished, well groomed and behave appropriately.” The court expressed
concern over the father’s lack of response to requests to have his Arkansas home
approved for placement of T. W. through the Interstate Compact on the Placement of
Children (ICPC). As to the ICPC request, the court found that the father’s phone was
disconnected, and that he did not respond to letters. This concerned the court because
T. W. has behavioral issues that require attention to detail regarding appointments,
medications and behavior management. Nevertheless, the father provided testimony
at the hearing that he and his wife had housing suitable for T. W. and that, like his
other two children, he would obtain medical coverage for T. W. through medicaid and
attend medical appointments with the child. The court concluded that the father
“loves his child, wants custody of his child and has demonstrated skills in raising his
current family and has demonstrated commitment to the child in attending many of
the court hearings and visiting with the child.” Despite the above findings, the court
10 terminated the father’s parental rights by finding that the father “does not have
parental ability to meet the needs of this child in conjunction with his present
responsibilities, his level of skills and needs of the child.”
The court made no finding that the father presented any danger to T. W. or that
the child’s deprivation was caused by any intentional or unintentional misconduct by
the father resulting in abuse or neglect of the child. Other than the failure to respond
to the ICPC request, the court made no finding that the father failed or refused to
cooperate with a case plan for reunification. Although there was evidence that the
father did not provide support for T. W. while the child was in the Department’s
custody, this was not a basis for the court’s termination order. Rather, the court’s
findings with respect to the father show that the basis for the termination order was
a finding of parental unfitness by what was tantamount to the father’s mental
incapacity to care for T. W. “A mental disability that renders a parent incapable of
caring for the child is a valid legal basis for termination.” In the Interest of L. H., 236
Ga. App. 132, 135 (511 SE2d 253) (1999), disapproved on other grounds, State v.
Herendeen, 279 Ga. 323, 326 (613 SE2d 647) (2005); see former OCGA § 15-11-94
(b) (4) (B) (i). Yet the court made other findings that, despite his mental disability,
the father was capable of providing for his wife and two children in Arkansas and had
11 demonstrated skills in raising his family. The father testified as to his ability to read
and write.
We conclude that, even construing the evidence in favor of the juvenile court’s
findings of fact, there was a lack of clear and convincing evidence to support the
court’s termination of the father’s parental rights based on parental inability. The
court’s finding of parental inability under former OCGA § 15-11-94 (a) required
evidence that: (1) the child is deprived; (2) lack of proper parental care or control is
the cause of the deprivation; (3) such cause of deprivation is likely to continue; and
(4) the continued deprivation will cause or is likely to cause serious physical, mental,
emotional, or moral harm to the child. Former OCGA § 15-11-94 (b) (4) (A). As to
requirement (1), in the absence of an appeal from juvenile court orders finding T. W.
was deprived, the father was bound by that determination. In the Interest of N. T., 334
Ga. App. 732, 740 (780 SE2d 416) (2015). As to requirement (2), in determining
whether the cause of the child’s deprivation was the lack of proper parental care and
control, former OCGA § 15-11-94 (b) (4) (B) provides that the juvenile court shall
consider the factors set forth therein, which include evidence of: “(i) A medically
verifiable deficiency of the parent’s physical, mental, or emotional health of such
duration or nature as to render the parent unable to provide adequately for the
12 physical, mental, emotional, or moral condition and needs of the child.” (emphasis
supplied). The juvenile court’s finding that the father’s intellectual functioning is
“classified as mental retardation” was based on a letter the father obtained from the
Social Security Administration and provided to the Department which confirmed the
basis for the father’s disability income and stated simply: “The disability code is
mental retardation.” As set forth above, the court further found that the father
functions well (despite his mental disability) and has the skills necessary to provide
for and raise his family (including two children) in Arkansas.
With respect to requirement (2) in former OCGA § 15-11-94 (b) (4) (A), on the
present record, we find a lack of clear and convincing evidence that T. W. is deprived
because the father has a mental deficiency of a nature that renders him unable to
exercise proper parental care and control to provide for the needs of T. W. Similarly,
with respect to requirements (3) and (4) in former OCGA § 15-11-94 (b) (4) (A), we
find a lack of clear and convincing evidence that the cause of the deprivation is likely
to continue, and that the continued deprivation will cause or is likely to cause serious
physical, mental, emotional, or moral harm to the child.
“Termination of parental rights is a remedy of last resort and can be sustained
only when there is clear and convincing evidence [satisfying the requirements set
13 forth in former OCGA § 15-11-94].” In the Interest of N. T., 334 Ga. App. at 743
(citation and punctuation omitted). We express no opinion about whether termination
of parental rights may be warranted based on future conduct or evidence. Id. at 745.
Judgment affirmed in Case No. A16A0231. Judgment reversed in Case No.
A16A0383. Doyle, C. J., and Ray, J., concur.