In re Interest of K. B.

368 Ga.App. 485

890 S.E.2d 414

In the INTEREST OF K. B., et al., children.

A23A0355

Court of Appeals of Georgia.

June 28, 2023

Jessica Nichole Tucker, for Appellant.

Leslie Y. Abbott, Christopher Michael Carr, Atlanta, Shalen S. Nelson, Atlanta, Emily Allen Harris, Jamila Oni Fair, for Appellee.

McFadden, Presiding Judge.

Stephen Boyd, the father of two minor children, appeals from a juvenile court order finding the children to be dependent in that they have been neglected and are in need of the protection of the court. Boyd challenges the sufficiency of the evidence supporting the juvenile court's dependency finding. Because the finding was supported by clear and convincing evidence, we affirm.

1. Sufficiency of the evidence.

"On appeal from a [juvenile] court's finding of dependency, we review the record 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 children were dependent." In the Interest of K. D. , 344 Ga. App. 423, 424, 810 S.E.2d 193 (2018). "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 a child whose well-being is threatened." In the Interest of R. D. , 346 Ga. App. 257, 259 (1), 816 S.E.2d 132 (2018) (citation and punctuation omitted).

So viewed, the record shows that the Georgia Department of Human Resources first became involved with the children in 2019 after law enforcement officers reported that the eight-months-old twins had been left alone in their home for an unknown period of time. The juvenile court entered a dependency removal order, finding that at the time of the incident, the mother was under the influence of drugs; she refused to return home because Boyd, the children's putative father, had stolen her marijuana; and Boyd, who also used drugs, refused to submit to drug screening. In October 2019, the juvenile court entered an order awarding temporary custody of the children to the Department and placing the children with a caregiver, finding that the mother had stipulated to the children's dependency and that evidence of such dependency included drug use by the parents and domestic violence between them. The Department created a family case plan requiring, among other things, that Boyd take a DNA test to establish paternity and that he legitimate the children; that he complete parental fitness, domestic violence, substance abuse, and psychological evaluations; that he follow all recommendations of such evaluations; that he maintain a stable, safe, and drug-free home; and that he maintain stable employment.

After a DNA test established that Boyd was the children's biological father, the juvenile court granted his petition to legitimate the children. In March 2021, the juvenile court entered a consent order after a hearing at which Boyd was represented by his attorney. The consent order found that the Department had provided Boyd with the reunification case plan, which the court approved and adopted. The consent order found that the Department had made referrals for Boyd to complete parental fitness, domestic violence, substance abuse, and psychological assessments required by the plan; and that the Department had also made agency referrals for him to complete drug screening and counseling services. Boyd, however, failed to participate in any of the case plan services and had failed to participate in visitation with the children. The consent order further found that Boyd had pending criminal charges for aggravated assault, battery, and criminal trespass. The Department also had been unable to verify Boyd's housing and employment because he failed to provide requested documentation and would not schedule time for a home visit. The consent order concluded that the children continued to be dependent in that they were without proper parental care or control.

In December 2021, the Department filed a dependency petition as to Boyd. At the adjudication hearing, the Department presented evidence that Boyd had refused the Department's attempts to help him complete his case plan's assessments, services, and drug screenings. Boyd claimed that he was not on drugs and that he had taken a drug test, but admitted that the results of that test had come back "dirty." There was some evidence that the father was employed at a booth in a mall, but the Department maintained that his employment and income had not been verified because of issues about the validity of a purported pay-stub provided by Boyd. The evidence also showed that the children's mother was the alleged victim of two incidents giving rise to Boyd's arrests and pending criminal charges. Boyd had also failed to provide child support since legitimating the children.

Under Georgia law, the juvenile court may place a minor child in the protective custody of the Department where the [s]tate shows, by clear and convincing evidence, that the child is a dependent child. As relevant here, OCGA § 15-11-2 (22) (A) defines a dependent child as a child who, among other things, has been ... neglected and is in need of the protection of the court.

In the Interest of A. M. B. , 361 Ga. App. 551, 554-555 (a), 864 S.E.2d 713 (2021) (citations, punctuation, and footnote omitted). " ‘Neglect’ is defined as the failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child's physical, mental, or emotional health or morals. OCGA § 15-11-2 (48) (A)." In the Interest of T. Y. , 357 Ga. App. 189, 196 (1), 850 S.E.2d 244 (2020) (punctuation omitted). The lack of stable employment and income is a proper consideration for dependency. In the Interest of J. S. , 295 Ga. App. 861, 864, 673 S.E.2d 331 (2009). And when a child is not in the custody of a parent, "[a]mong the grounds on which a juvenile court may find a child dependent due to lack of proper parental care and control [is]...