In re Interest of S.B.

335 Ga.App. 1

780 S.E.2d 520

In the Interest of S.B. et al., children.

No. A15A1427.

Court of Appeals of Georgia.

Nov. 20, 2015.

Jo Carol Nesset–Sale, Athens, for In the Interest of S.B. et al., children.

BOGGS, Judge.

The parents of five-year-old S.B. and six-year-old D.L.B. appeal from juvenile court orders terminating their parental rights and subsequent orders denying their motions for new trial. Specifically, the parents contend that the court lacked clear and convincing evidence to support its findings that deprivation was likely to continue and that continued deprivation would cause serious physical, mental or emotional harm to the children. The parents further assert that termination of their parental rights was not in the children's best interests and that they received ineffective assistance of counsel. We granted the parents' application for discretionary review, and, for the reasons explained below, we reverse.

The record shows that the mother and father have two children together out of wedlock, a daughter born in 2010 and a son born in 2009. The father was married to another, but he noted that he had been separated from his wife for 15 years and did not know her whereabouts so he could not divorce her. Although he never legitimated the children, he resided with the mother and children except when working in North Carolina to support them. DFACS became involved with the family in March 2011, when the Department substantiated allegations that the children had been neglected and were receiving inadequate food, clothing, shelter, and medical attention. The parents consented to court orders, entered on June 11, 2012, finding the children deprived but allowing them to remain in the parents' custody under a protective order that required the parents, among other things, to maintain sufficient income, provide adequate food, keep housing free of animal urine and feces, make and keep necessary medical and dental appointments, and take parenting skills training. In the orders, the parents stipulated that conditions in the family home were unsanitary and unsafe: old food and dirty dishes were piled in the sink and on the counters, dog feces was located throughout the house, including in the children's room, cigarette butts and piles of trash were located throughout the house, expired food remained in the refrigerator, and the house lacked electric power. Furthermore, the parents stipulated that they failed on many occasions to take the children to scheduled doctor appointments and that the pediatrician would no longer provide well-baby checks for the children. The court orders were set to expire on November 23, 2012, unless sooner terminated by court order.

On July 25, 2012, the children were removed from their home and placed in foster care based on a new complaint that there was no electric service in the home during the summer heat, that D.B. had received severe sunburns on at least three occasions, and that the parents had failed to comply with the protective order: the parents had unstable housing, their home continued to be unsanitary, and neither parent had a steady income. The children again were found to be deprived after the 72 hour hearing, and on August 15, 2012, the parents stipulated to a deprivation finding based upon medical neglect (three untreated severe sunburns and a lack of up to date immunizations), inadequate supervision, inadequate housing, irregular employment, and general non-compliance with the protective order directives. The court orders were set to expire on July 25, 2013, unless sooner terminated by court order.

At a January 2013 judicial review, the court found that the parents had maintained a bond with the children by attending weekly visits, but that they needed to obtain and maintain employment and stable, clean housing. The children remained in foster care, and the court revised the permanency order to a concurrent plan of reunification or adoption. On July 15, 2013, this plan was extended through July 25, 2014, unless sooner terminated by court order. In that consent order, the court noted that both parents had completed their parenting training, made virtually all scheduled visits with the children (even though they had to walk five miles to the visitation because they could not get a ride from family or friends), and maintained a bond with the children, but they still failed to maintain stable employment or housing.

On October 1, 2013, DFACS filed petitions to terminate the parents' parental rights. Since the father had not legitimated either child, he was informed that he would lose all rights to the children and would not be entitled to object to the termination of his rights if he did not file a petition to legitimate within 30 days. On the same day, the court appointed public defender Katie Parker as attorney for both the father and the mother.

The one-day termination of parental rights hearing occurred on December 10, 2013. At the outset, DFACS invoked the statutory provision of OCGA § 15–11–96(i)¹ extinguishing the rights of putative fathers to object to termination of their parental rights. Parker admitted that she failed to file a petition for legitimation on behalf of the father after being served with the termination of parental rights petition.

Beverly Oxley, a licensed psychologist, testified without objection at the termination hearing as an expert in child psychology. In October 2012, she performed separate two-hour evaluations of then three-year old D.B. and two-year old S.B. According to Oxley, both children had severe learning delays in their speech and needed a language-rich or stimulating environment. In addition, both children demonstrated symptoms of reactive attachment disorder, which is a disorder in which children are unable to form healthy attachments and need stability, consistency, and loving caregivers to form healthy attachments. Oxley opined that moving the children from foster home to foster home would put them at risk for developing reactive attachment disorder. However, she noted that the children's symptoms did not warrant therapy, though she did recommend speech therapy for the children.

Kim Ball, a social services case manager for DFACS, conducted parenting classes for the parents in conjunction with their weekly visits from October 2012 through March 2013. Ball testified that the parents were extremely cooperative and very interested in the training. In fact, they rarely missed their visits and often walked five miles from their home to the visits. The father often got down on the floor with the children to play and had a lot of positive interaction. The mother, who claimed back problems prohibited her from playing on the floor, read to the children or played video games with them. According to Ball, the children were well-behaved during the visits, but she wished the mother were more engaged.

Paulette Turner, a DFACS parent aide, provided parenting education and observed visits from July 2013 through November 2013. She testified that the parents and the children were always happy to see each other, on visit days the children would "always" ask, "Are we going to see Mama and Daddy?" and at the visit's end "everybody just hugs and kisses and says, ‘Bye, see you next week.’ " Turner, testified, however, that the children appeared to be happy to return to their foster home after visits. According to Turner, both parents were engaged in the visits, brought a bag with clean diapers and snacks to each visit, and occasionally brought the children crayons, colored pencils, or toys. The father had to stop visiting after he left to resume his old job in North Carolina.

Case manager Ashley Buchanan also noted the parents' remarkable visitation record, and she testified that the parents cooperated with home visits, phone calls, and mail. Regarding the mother, Buchanan testified that she regularly attended mental health care counseling, cooperated with DFACS in home visits and phone calls, participated in parenting classes, and had no further medical issues with the children. The mother walked to various businesses seeking jobs, but had minimal success finding employment. And, although the house was cleaner than ever, there was still a bug problem and the housing situation remained unstable pending a move to Charlotte, where her husband had been rehired at the company where he worked for 23 years before being laid off in 2013. Buchanan also observed some visits with the children and agreed that the father demonstrated more parenting skills and nurturing behaviors than the mother, but acknowledged that the mother's passive parenting is more a difference in style than bad parenting. The parents had not paid any child support while the children were in DFACS custody.

The father testified that he had worked for 23 years as a tile and stone mason with the same company in North Carolina until the recession resulted in his layoff. He had recently been re-hired and was making $16.00 per hour working 40 hours a week. According to the father, he could not get off work on Wednesdays to see his children, and he wanted to transition them to Charlotte. Until then, the children and the mother could stay in the home he was renting through the money he was sending her.

The mother testified that in North Carolina the children were involved in a program called Babies Can't Wait. She contacted the program here in Georgia when they moved, and D.B. was started on speech therapy; S.B. did not need services at the time of the assessment. The mother noted that she had put out roach traps to eliminate the last of the bugs, had bagged old clothing, and had begun taking the dog outside so dog feces was no longer an issue in the house. She admitted that she previously was unaware of the dangers associated with dog feces, and she has scrubbed the floors and rugs in the house to get rid of the pet feces and odor. The mother admitted on two occasions to leaving the dog in the home with...