In re D.T.A.

11 FCDR 3212

312 Ga.App. 26

717 S.E.2d 536

In the Interest of D.T.A. et al., children.

No. A11A1112.

Court of Appeals of Georgia.

Oct. 13, 2011.

McDonald, Thames & Ray, Todd Linden Ray, Joshua Joseph Smith, for appellant.

McCamy, Phillips, Tuggle & Fordham, Curtis Alan Kleem, Dalton, for appellee.

McFADDEN, Judge.

Mariano and Guadalupe Azua, the paternal grandparents of D.T.A. and K.F.A., petitioned for the termination of the parental rights of the children's mother and father. The juvenile court granted the termination petition, and we granted the mother's petition for discretionary review of that decision. Only the termination of the mother's parental rights is at issue in this appeal. The mother contends that the evidence was insufficient to support the juvenile court's decision. We find that the evidence was sufficient as to three of the four requirements set forth in OCGA § 15–11–94(b)(4)(A) for finding the parental inability or misconduct necessary to terminate parental rights, but that as to the fourth requirement the juvenile court failed to enter the requisite findings of fact. Accordingly, we vacate the judgment and remand this case for appropriate findings.

OCGA § 15–11–94 sets forth the procedure for termination of parental rights, which involves two steps. First, the juvenile court must find

parental misconduct or inability, which [under OCGA § 15–11–94(b)(4)(A) ] requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child's physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

(Footnote omitted.) In the Interest of J.R.N., 291 Ga.App. 521, 525(2), 662 S.E.2d 300 (2008). The appellate court views the evidence in the light most favorable to the juvenile court's ruling, see In the Interest of T.J.J., 258 Ga.App. 312, 314, 574 S.E.2d 387 (2002), and its review is

limited to addressing the question of whether any rational trier of fact could have found by clear and convincing evidence that the parent's rights should have been terminated. In this review, the appellate court must necessarily defer to the juvenile court's fact finding, weighing of the evidence, and credibility determinations.

(Citations omitted.) In the Interest of A.C., 285 Ga. 829, 836(3), 686 S.E.2d 635 (2009).

Viewed in this manner, the evidence showed that on March 19, 2009, the mother's grandmother (hereinafter, the great-grandmother) left the children and a box of clothing at the Azuas' house. At that time, D.T.A. was two years old and K.F.A. was three months old. Upon learning that the children were at the Azuas' house, the mother physically attacked the great-grandmother, and a warrant was issued for the mother's arrest. In the meantime, the Azuas, who feared that the mother would accuse them of kidnapping the children, contacted the police. Later on March 19, the juvenile court entered an immediate shelter care order removing the children from the mother's custody and placing them in the Azuas' custody. In support thereof, the court found that the mother was unemployed and without a stable residence, that she had recently been released from jail after being charged with making terroristic threats against the Azuas, that she was currently on probation, that she had allegedly attacked the great-grandmother, and that she was the subject of an arrest warrant.

The Azuas filed a deprivation petition, alleging that the children were deprived because the mother was incarcerated on aggravated battery charges related to the incident with the great-grandmother; that at the time of her arrest the mother had been on bond in connection with charges of making terroristic threats against the Azuas; that the mother was unemployed and had an inconsistent work history; and that the mother could not provide a suitable home for the children. The Azuas stated in the petition that they believed the father would consent to their temporary legal and physical custody of the children.

The juvenile court held a deprivation hearing, and in April 2009 it adjudicated the children deprived “[b]ased upon the allegations of the petition, the recommendations of [a court-appointed] Guardian ad Litem, the consent of the father, the mother's current incarceration, and the evidence presented.” The record on appeal does not include a transcript of the deprivation hearing. The mother stated in her notice of appeal that she would file for inclusion in the record “a transcript of evidence and proceedings,” and a transcript of the termination hearing was filed for inclusion in the record, but we have determined through inquiry with the juvenile court that, although the deprivation hearing was recorded, see OCGA § 15–11–41(b), the recording was not transcribed.

In the deprivation order, the juvenile court awarded temporary legal and physical custody to the Azuas, noting that the Department of Family and Children Services had approved the Azuas' home. The court further ordered that the mother satisfy several requirements before a return of custody would be considered. Specifically, the court ordered that the mother obtain and maintain stable, suitable housing of sufficient size for the family; obtain and maintain employment with income sufficient to meet the family's needs; attend a parenting class; complete a drug and alcohol assessment that included six random drug screenings; maintain meaningful contact with the children by visiting them at least once every two weeks; and pay child support. The mother did not appeal the deprivation order.

In June 2009, the mother pled guilty to the terroristic threats charges and was sentenced as a first offender to five years confinement, the majority of which was to be served on probation. The mother also pled guilty to battery in connection with the incident involving the great-grandmother. The mother was released from jail in June 2009. In December 2009, however, the mother was again incarcerated after being arrested for attempting to run over her boyfriend with a car, for striking her boyfriend with her fists, for DUI, and for underage drinking. She pled guilty to various charges related to that incident, and her probation on the terroristic threats conviction was revoked. She could remain in prison until 2014.

On June 28, 2010, the Azuas petitioned for the mother's parental rights to be terminated. A hearing on the petition was held on November 1, 2010. The only witnesses at that hearing whose testimony pertained to the termination of the mother's parental rights were the Azuas, the great-grandmother, and the children's maternal grandmother (hereinafter, the grandmother). The mother was not present at the hearing, the juvenile court having denied her motion to be produced from prison. See generally In the Interest of S.R.B., 270 Ga.App. 466, 467(1), 606 S.E.2d 655 (2004) (juvenile court was authorized to deny parent's request to be produced from prison for termination hearing where parent received notice of hearing and had adequate opportunity to be heard at hearing through counsel).

Evidence was presented at the termination hearing concerning the mother's efforts to comply with the reunification terms set forth by the court in the deprivation order. During the period between her incarcerations (June 2009 to December 2009), the mother visited with the children weekly for 45 minutes per visit. She completed a parenting class and scheduled a drug and alcohol assessment but had not yet attended the assessment or had any random drug screenings. She applied for jobs, but was not able to obtain employment other than some work she performed for the grandmother and great-grandmother, for which she was paid $2,000. She briefly shared an apartment with a boyfriend (the rent for which was paid by the great-grandmother); otherwise, she lived with the grandmother and great-grandmother. From the time of her December 2009 incarceration forward, the mother saw the children only once but telephoned them weekly. She also sent them cards. At no time did the mother make any child support payments to the Azuas or assist them in providing clothes, gifts, or food for the children, aside from some Christmas presents.

Evidence was presented that D.T.A. had a bond with and loved his mother, but that he never asked or cried for her. K.F.A., due to her young age, had “[v]ery little” bond with her mother. Photographs taken during some of the mother's visits with the children depict them smiling and appearing happy. Mrs. Azua testified, however, that D.T.A. developed a stutter for a few months after his mother's June 2009 release from jail, and he often refused to talk with the mother when she called from prison. K.F.A. would talk to the mother on the telephone but was too young to realize that the person calling was her mother. The grandmother testified that the mother's incarceration negatively impacted the mother's ability to create a bond with K.F.A. and also negatively affected the mother's relationship with D.T.A., because the children did not see her.

Evidence was presented that the children had a bond with the Azuas, who were able to provide them a stable home and who desired to adopt them. Evidence also was presented that the children had a bond with the grandmother and great-grandmother, whom the Azuas allowed the children to visit. Mrs. Azua testified that, if the mother's parental rights were terminated and the Azuas were granted custody of the children, she would continue to allow the children to visit the grandmother and great-grandmother, and she would...