In re Interest of K. K.

364 Ga.App. 82

874 S.E.2d 110

In the INTEREST OF K. K., a child.

A22A0400

Court of Appeals of Georgia.

June 1, 2022

Karimah Boston, Abdulhakim Saadiq, Decatur, for Appellant.

Calandra Almond Harps, Atlanta, Christopher Michael Carr, Atlanta, Shalen S. Nelson, Ramona Alexia Condell, Mark Brooks, for Appellee.

Hodges, Judge.

K. K. was removed from his Mother's care after she left a loaded gun unsecured, and K. K., who was then four years old,¹ witnessed his three-year-old brother,² A. K., fatally shoot himself in the head.

After the juvenile court found K. K. dependent, the Mother filed the instant appeal. She alleges that the juvenile court erred in denying her motion to dismiss the case, entering a dependency finding despite a lack of evidence, using an incorrect legal standard to find K. K. dependent, and ordering supervised visitation despite a lack of evidence. For the reasons explained below, we vacate the juvenile court's dependency determination and disposition order and remand this case with instruction.

In an appeal from a dependency adjudication, this Court reviews the evidence in the light most favorable to the juvenile court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was dependent. In the Interest of S. C. S. , 336 Ga. App. 236, 244, 784 S.E.2d 83 (2016) (stating standard of review in dependency case). In making such a 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 a child whose well-being is threatened." (Citation and punctuation omitted.) Id. at 245, 784 S.E.2d 83.

Under the most recent version of Georgia's Juvenile Code, the juvenile court may place a minor child in the protective custody of [DFCS] where the State shows, by clear and convincing evidence, that the child is a dependent child .... Pursuant to OCGA § 15-11-2 (22), a dependent child is defined as "a child who: (A) Has been abused or neglected and is in need of the protection of the court; (B) Has been placed for care or adoption in violation of law; or (C) Is without his or her parent, guardian, or legal custodian." But even after finding a child to be dependent, a juvenile court can only remove a child from a parent's custody if it finds that the dependency resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. And proof of unfitness must be shown by clear and convincing evidence[.]

(Citations and punctuation omitted.) In the Interest of T. S. , 348 Ga. App. 263, 269, 820 S.E.2d 773 (2018). Additionally,

[a]n order entered following a hearing in a dependency proceeding shall include findings of fact. OCGA § 15-11-111 (b) (2). Such findings of fact should be made in accordance with OCGA § 9-11-52 (a), which provides that a court must find the facts specially and ... state separately its conclusions of law.

(Citations, punctuation, and emphasis omitted.) In the Interest of B. G. , 345 Ga. App. 167, 168 (1), 812 S.E.2d 552 (2018).

On August 10, 2020, the Department of Family and Children Services ("DFACS") filed a dependency complaint on behalf of K. K. The complaint alleged that K. K. needed foster care placement because of neglect and a lack of adequate supervision, as K. K.’s Mother had been incarcerated on charges of second degree murder and second degree cruelty to children because, while in her presence, her minor son, A. K., had fatally shot himself in the head with a handgun. K. K. had witnessed his brother's shooting and death.

The juvenile court held a dependency hearing, at which the Mother testified and was represented by counsel. The detective who investigated A. K.’s death testified that he received a call on July 28, 2020, about a child's shooting. The Mother's boyfriend had placed his loaded gun on top of an air mattress. The Mother noticed the gun, and placed it on the floor next to the mattress. She then went to sleep on the mattress with both A. K. and K. K. The boyfriend came in later, pushed the gun partially under the mattress, and went to sleep. The next morning, the boyfriend was still asleep and the Mother was "playing with her phone" with the "covers over her head" while K. K. watched television and A. K. ate a Reese's Peanut Butter Cup candy. A. K. apparently began "playing with the handgun ... [which] went off and shot him in the head."³ A. K. apparently had been looking down the barrel of the gun. The detective testified, "I know [K. K.] was a witness to it. We interviewed him." The Mother and her boyfriend reported that they failed to put the gun away because they were tired.

After the shooting, K. K. initially stayed with his maternal grandmother, but DFACS requested foster care placement in part because the grandmother had pending charges of aggravated assault and cruelty to children, as well as other charges, which the caseworker testified meant any placement with her was prevented by DFACS policies and procedures. The Mother was incarcerated and released on bond, and the caseworker testified that K. K.’s placement with the grandmother also was inappropriate because the conditions of the Mother's bond required her to remain at the grandmother's home and prevented her from contact or violent contact with K. K., as he had been identified as a victim in the Mother's criminal case. The Mother testified that A. K.’s death changed how she would parent K. K. because she would "be...