In re Interest of D.M.

339 Ga.App. 46

793 S.E.2d 422

In the INTEREST OF D.M. and B.A.M., Children.

A16A1295

Court of Appeals of Georgia.

October 20, 2016

Andrew W. Pope, Thomasville, for Appellant.

Calandra Almond Harps, Samuel S. Olens, Shalen S. Nelson, Atlanta, Robert Daniel Jewell, Moultrie, for Appellee.

Dillard, Judge.

The mother of D.M. and B.A.M., two minor boys, appeals from the juvenile court's order terminating her parental rights.¹ She argues that the juvenile court erred by terminating her rights when the evidence was insufficient to support the court's decision. Because the evidence was sufficient as to some factors but the juvenile court failed to make the requisite findings of fact as to others, we vacate and remand for additional proceedings consistent with this opinion.

On appeal, we view the evidence in the light most favorable to the juvenile court's disposition to determine whether any rational trier of fact could have found by clear and convincing evidence that the mother's parental rights should have been terminated.² But as we have repeatedly emphasized, this deferential standard of review is tempered by the fact that

there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one's children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.³

So viewed, the record reflects that D.M. (born August 3, 2009) and B.A.M. (born January 4, 2011) were first removed from their mother's home in February 2011, after reports of domestic violence, unsanitary living conditions, the threat of imminent eviction, and the mother's refusal to stay in a shelter to protect the children from their father. In April 2011, after a hearing, the juvenile court found by clear and convincing evidence that the children were deprived and placed them in the temporary custody of the Department of Family and Children Services ("the Department").

In July 2011, the juvenile court approved of a case plan for the boys' parents, which required the parents to, inter alia , complete parenting classes, obtain and maintain a source of income and housing, obtain childcare and assure that the children were properly supervised, complete a domestic-violence assessment, and complete and follow recommendations after a psychological evaluation. Then, in March 2012, the Department moved for an extension of the previous deprivation order so that it could monitor the mother's progress with the case plan until she moved into a new home, though she had completed some aspects of the plan.⁴

On April 27, 2012, nunc pro tunc March 28, 2012, the juvenile court entered an order returning custody of the children to the mother subject to an aftercare plan. However, on April 24, 2012, the court entered a second shelter-care order that once again placed the children in the Department's custody following a report by law enforcement that then one-year-old B.A.M. had nearly been run over while playing in the middle of the street and while then two-year-old D.M. was playing by the edge of the road (both of the toddlers had been playing outside without any supervision by their mother). In addition to this troubling report, the Department discovered that upon the children's return to the mother, she had failed to use either the approved child-care services arranged by the Department or the Department-approved backup child-care services offered by a friend. Instead, the mother left the children in the care of a person who had a criminal drug history and an "extensive" history with the Department. Furthermore, two Department representatives observed that the children were very dirty while in the mother's care, that the upkeep of her home had suffered a drastic decline, and that she was once again facing eviction.

The same day that the children returned to the Department's custody, the juvenile court approved of a second case plan for the mother, which required the mother to submit to another psychological evaluation and develop a stronger support system, in addition to goals that were identified in the previous case plan. Then, on June 7, 2012, nunc pro tunc May 16, 2012, the court found by clear and convincing evidence that the children were deprived.

The children were again returned to the mother in March 2013, and their return was subject to her completion of an aftercare case plan. While working on the goals of the aftercare plan, in August 2013, the Department received an unsubstantiated report that then two-year-old B.A.M. had a visible hand-print-shaped bruise on his face. D.M., who was then four years old, was interviewed and reported that the mother's boyfriend had hit the child and called him a "lying baby" and his mother a "stupid bitch." The Department eventually closed the case against the mother, however, due to her progress with the aftercare case plan.

But then, in December 2013, the Department received substantiated reports that D.M. had significant bruising on his bottom and back and a cut on his arm. D.M. reported that his mother had cut his arm with a knife and hit him, which he said she did when she was angry. When the Department spoke to the mother about these allegations,⁵ she responded that the cut to D.M.'s arm was caused by a chain link fence but admitted that the bruises were probably from a spanking she administered with a belt. Around this same time, the mother was also referred to a therapist for assistance in dealing with what was deemed problematic behavior by D.M., but the mother did not believe that D.M. needed services and instead minimized his behavior.

Finally, in April 2014, the Department received a report that D.M. had a burn mark on his foot, and that he had again been found in the middle of the road. And then, in May 2014, the Department received a report that a neighbor saw still four-year-old D.M. outside after dark, knocking repeatedly in an attempt to enter the residence, and that the mother appeared unconcerned when she eventually opened the door. The same neighbor also reported seeing D.M. nearly get hit by a car while in the road. Thereafter, when the Department presented her with a safety plan that required her agreement to properly supervise the children and keep them out of the road, the mother refused to sign it.

Ultimately, in July 2014, following a hearing on a dependency petition, the juvenile court found by clear and convincing evidence that the children were dependent and placed them in the Department's custody for a third time. And in February 2015, the Department filed its petition seeking to terminate the mother's parental rights, upon which a hearing was conducted in July 2015.

At the hearing on the petition to terminate, Department representatives and other witnesses recounted many of the facts set forth supra and, additionally, there was testimony that the mother cooperated with the Department when actively working on case plans but would immediately become uncooperative after the children were returned to her custody. One Department representative opined that the mother behaved appropriately toward her children in a controlled environment but quickly regressed without supervision, and that the allegations against the mother grew more serious with each removal from her care. As a result, the Department determined that it would no longer seek reunification between the mother and children.

The boys' foster parents also testified at the hearing and expressed their desire to adopt the children. They recounted the struggles they encountered when the boys first came to live in their home a little over one year prior to the hearing—particularly angry, defiant behavior by D.M., who was prone to hoarding, lying, nightmares, bed wetting, and daytime accidents. But both children's behavior had significantly improved since beginning therapy. The foster parents also testified that they had stopped informing the children about impending visits with their mother until they were en route because there was a noticeable increase in defiant and regressive behavior before and after these visits, with D.M. the one to primarily exhibit this behavior, which B.A.M. would then mimic. Additionally, the foster father testified that the boys no longer referred to their mother as "mom," but instead by her first name.

In addition to the foregoing, the juvenile court also considered deposition testimony from a licensed psychologist who conducted three separate evaluations of the mother in April 2011, June 2012, and September 2014. In April 2011, she diagnosed the mother with postpartum depression and deferred a diagnosis of personality disorder. The psychologist also noted that the mother seemed to be attracted to abusive, possessive men who abused substances, and she believed the mother's low self-esteem was manifested by continuously making poor decisions. Finally, the psychologist noted that while the mother was motivated to regain custody of the children, she was also at a high risk for abusive parenting due to inappropriate expectations of children (i.e. , the mother believed the children could care for themselves without supervision) and lacked the ability to be empathetic.

During the second evaluation in June 2012, the psychologist no longer believed the mother suffered from postpartum depression, but again observed that she displayed traits of dependent and avoidant-personality disorder. She also noted that the mother trusted others too quickly, was prone to procrastination, had not made progress on recommendations from the April 2011 report, was defensive about the possibility of suffering from psychological problems, and was extremely sensitive to criticism.

Finally, during the September 2014 evaluation, the mother denied having any problems, which suggested to the psychologist that she had not...