In re Interest of T.Y.

357 Ga.App. 189

850 S.E.2d 244

In the INTEREST OF T.Y. et al., children.

A20A1417

Court of Appeals of Georgia.

October 19, 2020

Smith Law Group, Judson Frank Smith Jr., for Appellant.

Christopher M. Carr, Attorney General, Bryan K. Webb, Deputy Attorney General, Shalen S. Nelson, Calandra A. Harps, Senior Assistant Attorneys General, Jennifer T. McComas, Assistant Attorney General, for appellee.

Coomer, Judge.

This case returns to us from remand. In the first instance, this Court vacated the juvenile court's denial of a motion for immediate reunification and return of the mother's six children to her custody. See In the Interest of T. Y. , 350 Ga. App. 553, 561, 829 S.E.2d 808 (2019). The mother appeals from the juvenile court's order on remand again denying her motion for reunification and argues that the juvenile court erred by finding (1) continued dependency, (2) that the continued dependency would cause serious harm, and (3) that the evidence to support such findings was clear and convincing. The mother also asserts that the juvenile court's findings were against the weight of the evidence presented at the hearing and that the juvenile court erred by modifying her visitation without applying the correct legal standard. For the reasons expressed below, we reverse.

On appeal from an order finding [children] to be [dependent children], we review the juvenile court's finding 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 [children are] dependent. 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 M. S. , 352 Ga. App. 249, 256, 834 S.E.2d 343 (2019) (citation and punctuation omitted). "[U]nder Georgia law, ‘clear 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 S.E.2d 505 (2018) (citation and punctuation omitted). Viewed in the light most favorable to the juvenile court's order,¹ we recite the facts as stated in our prior opinion:

[T]he mother is the biological parent of six children, including T. Y., a son born in 2006; K. T., a daughter born in 2010; L. T., a son born in 2011; H. T., a daughter born in 2013; J. T., a daughter born in 2014; and A. T., a son born in 2017. Joseph Yeater—whose whereabouts are unknown—is the biological father of T. Y., and Lawrence Turner is the biological father of the remaining children. Turner is currently incarcerated, having pleaded guilty to charges of vehicular homicide.

DFCS's first involvement with the mother and her children occurred in May 2010, when the mother's second oldest child drowned in the bathtub. At that time, DFCS imposed a safety plan, which was ultimately closed. DFCS became involved again in 2014, when the mother called the police when she noticed bruising on T. Y. after Turner spanked the child. Turner was charged with cruelty to children, and DFCS implemented a safety plan requiring that he be separated from all the children.

On November 18, 2015, police officers found then eight-year-old T. Y., who has been diagnosed as autistic, wandering the streets alone after midnight. When questioned, he told authorities that he was going to Walmart to buy a new mother, provided his mother's name, and claimed that he had run away from home before. The mother was located later that day, but when investigators went to the home, they found it to be unsafe. Consequently, on November 23, 2015, DFCS filed a petition alleging that T. Y., five-year-old K. T., three-year-old L. T., two-year-old H. T., and one-year-old J. T. were all dependent. That same day, the juvenile court entered a preliminary protective hearing order, nunc pro tunc to November 19, 2015, placing the children in the temporary custody of DFCS.

On December 16, 2015, the juvenile court—with the mother and Turner's consent—entered an order of adjudication and disposition finding the children to be dependent and, again, granting temporary custody of the children to DFCS. The juvenile court further noted the cruelty-to-children charge pending against Turner as a result of his unreasonable, excessive use of corporal punishment against T. Y. and that he had other pending criminal charges in Jeff Davis County, including homicide by vehicle in the first degree, driving under the influence of alcohol, and failure to maintain lane. Additionally, as part of this order, the juvenile court incorporated a reunification plan, which required Turner and the mother to establish and maintain an appropriate home and income for the children, undergo psychological evaluations and any treatment recommended as a result of such evaluations, complete a certified parenting class, and fully cooperate with DFCS.

On May 31, 2016, the mother and Turner filed a motion seeking to regain custody of the children on the ground that they had completed most of their reunification plan goals. But in a "Judicial Review Order" dated June 23, 2016, the juvenile court noted that then five-year-old K. T. alleged to her foster parent that Turner sexually abused her. An investigation was conducted, and although the allegations could not be substantiated at that time, K. T.’s foster parent continued to express concerns. Additionally, the advocacy center that investigated K. T.’s allegation of abuse recommended the child have no contact with Turner and that a more thorough investigation be conducted. Nevertheless, on July 27, 2016, the mother and Turner filed another motion, this time requesting to reestablish visitation with K. T. and, alternatively, for a return of custody of all the children. On January 12, 2017, following a December 8, 2016 hearing, the juvenile court denied the mother and Turner's July 27, 2016 motion, finding that the mother had yet to seek counseling for her various mental-health issues and that Turner still had several criminal charges pending against him.

On April 13, 2017, the juvenile court entered a judicial review and permanency hearing order, finding that the mother had given birth to another child (A. T.) and had hidden her pregnancy from both DFCS and the court. In addition, the juvenile court's order found that the mother failed to comply with her reunification case plan and Turner had been sentenced to 15 years in prison with five years to serve after pleading guilty to the vehicular-homicide charges. On July 13, 2017, the juvenile court issued another order, finding that although the mother had made progress on her plan, she required further mental-health treatment.

On July 21, 2017, the mother filed a motion to return all the children to her custody, arguing that it was in the children's best interest to be reunified with their mother, and the DFCS caseworker and children's pediatrician concurred. The juvenile court held a multi-day hearing on the mother's motion on August 31, 2017; September 22, 2017; and September 28, 2017. And during that hearing, the DFCS caseworker testified that the mother had positive interactions with the children during visitations and was complying with her case plan, including continuing to undergo counseling for her mental-health issues. She also testified that the mother's new home is clean and safe, but conceded that the home was in Turner's name, who was currently incarcerated. With regard to Turner, the caseworker admitted that she had concerns about him being around the children upon his release, in light of the allegations that he physically abused T. Y. and sexually abused K. T., but she did not believe the mother would risk losing her children by allowing Turner back into her life. She also acknowledged that the mother claimed she was uncertain as to whether Turner caused T. Y.’s bruises and that she had no intention of seeking a divorce. Additionally, the caseworker admitted that the mother lied to her about being pregnant with A. T. and, in fact, did not admit that A. T. was her child until nearly two months after his birth. Nevertheless, the caseworker recommended that all six children be returned to the mother's custody.

The juvenile court also considered testimony from a child psychologist charged with treating K. T. for post-traumatic stress disorder, who opined that the child's evaluations were consistent with that of a child who had been sexually abused. The psychologist further testified that she did not think K. T. should be returned to the mother's custody until it could be determined whether she was complicit in the child's sexual abuse.

In addition, a visitation supervisor with Horizon Family Services testified that the mother interacted well with the children and that her home was always clean. Consequently, she thought the children should be returned to the mother, but she also admitted that she was not aware of the details of the reunification plan or whether the mother had fully complied with it. Similarly, two additional visitation supervisors, one with Horizon and the other with TLC Services, also testified that the mother interacted well with the children during visits and that the children wanted to return home.

Several of the children's current foster parents also testified. The foster parent for L. T. testified that the mother interacted well during visits, attended all of L. T.’s medical appointments, and, therefore, she believed L. T. should be returned to the mother's custody. The foster parent for T. Y. similarly testified and also advocated for reunification. The foster parent for K.

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