In re Interest of B. R.

368 Ga.App. 353

890 S.E.2d 129

In the INTEREST OF B. R., a child.

In the Interest of B. R., a child.

A23A0194, A23A0356

Court of Appeals of Georgia.

June 26, 2023

Amber Denyse Walden, for Appellant.

Christopher Michael Carr, Atlanta, Shalen S. Nelson, Emily Allen Harris, Jerry W. Thacker, for Appellee.

Brown, Judge.

In this dependency case, the mother of B. R. ("the child"), a three-year-old girl born on December 13, 2019, appeals from two juvenile court orders issued after separate hearings. ¹ In Case No. A23A0194, the mother asserts that the juvenile court erred in: (1) failing to issue an order with all requisite written findings of fact, including a specific basis for its finding of continued dependency; (2) failing to enforce the requirement that a permanency plan report be submitted five days before a scheduled hearing or properly incorporating it into its order and the record; (3) granting a continuance in the absence of good cause; and (4) finding that clear and convincing evidence established continued dependency. In Case No. A23A0356, the mother makes essentially the same arguments excluding the lack of good cause for a continuance. For the reasons outlined below, we vacate the juvenile court's orders and remand these cases with instruction.

Procedural Background

In appeals from orders in a dependency case, we construe the evidence in the light most favorable to the juvenile court's findings. See In the Interest of A. T. , 309 Ga. App. 822, 711 S.E.2d 382 (2011). In this case, the record shows that the DeKalb County Department of Family and Children's Services ("DFCS") took custody of the child when she was four days old because the mother used cocaine throughout her pregnancy, the child's urine tested positive for cocaine at birth, and the mother tested positive for cocaine at the hospital. The child was born at 37 weeks gestation and weighed three pounds. The mother did not seek prenatal care during her pregnancy and stated that she used illicit substances to manage her stress. DFCS placed the child in foster care.

On January 14, 2020, DFCS filed a dependency petition outlining the above facts in addition to asserting that the mother "has a history of illegal drug [use] that impairs her ability to parent the child," the mother "has prior CPS history with DeKalb DFCS," the mother tested positive for cocaine in a drug test in open court on December 20, 2019, that the father refused to submit to such a test, and that the father had recently reported to DFCS that the mother was missing. At the time the petition was filed, the father had not yet legitimated the child or participated in DNA testing.

On March 13, 2020, following a hearing held on January 29, 2020, the juvenile court entered an "Order of Adjudication and Temporary Disposition" finding that the child was dependent based upon a list of the same facts asserted in DFCS's dependency petition. It ordered the child to remain in DFCS custody.

On April 28, 2020, the juvenile court entered a disposition order following a 75-day review conducted on February 19, 2020, in which the court "received oral and documentary evidence." It ordered and adopted "the concurrent permanency plan of reunification and adoption to which the parties have agreed." It scheduled a permanency hearing for August 5, 2020.

On August 25, 2020, the juvenile court entered a "Permanency Hearing/Judicial Review" following a virtual hearing. It noted that the child was "not making as many sounds as she should" and that a recommendation had been made for occupational and speech therapy. It found that the parents had "not completed their court-ordered case plan in order to reunify with the child." While the mother had completed a psychological/parenting assessment, she had not yet completed the goals of individual therapy, random drug screens, and stable housing. At that time, the parents were visiting with the child virtually. The permanency plan remained concurrent reunification and adoption.

By the time the court entered its next "Permanency Hearing/Judicial Review" order on February 17, 2021, the father had legitimated the child, and both parents were employed. While the parents were "making good progress on their case plan," they had not yet "completed their court ordered case plan in order to reunify with the child." Outstanding goals for the mother included individual therapy, parenting classes, random drug screens, and stable housing. Visitation continued to be virtual.

On August 4, 2021, the case was scheduled for a permanency hearing and "[p]re-[t]rial" on DFCS's petition to terminate parental rights. ² In an order entered on September 1, 2021, the juvenile court continued the case "to perfect service on the mother." The order notes that "[t]he parents have not submitted to random drug screens and have not completed parenting classes."

When the parties appeared for the rescheduled pretrial hearing on September 1, 2021, the court accepted their joint request to hold a permanency hearing in lieu of the pretrial hearing. ³ The trial court's subsequent "Permanency Hearing/Judicial Review" order notes that the parents submitted to three random drug screens. Two urine screens for the mother were negative and a hair follicle test was positive; all three of the father's drug screens were negative. Additionally, both parents were employed and living together in stable housing suitable for the child. The child had begun speech therapy and was wearing a leg brace to help her walk. Visitation at the time of this order had recently changed to in-person, with one such visit having taken place. The court declined to order the child returned to her parents because they had not yet completed "their court-ordered case plans" but once again found they were "making good progress."

Hearing and Order at Issue in Case No. A23A0194

At the next scheduled permanency hearing on March 2, 2022, the mother's attorney asked that the child be returned to the mother's custody because "there was no testimony that there was any connection between any positive [drug] screens and my client's ability to parent .... [She] has been appropriate with [the child] during the visits, she's been consistent with visits, and there haven't been any concerns." In its subsequent order, entered on April 26, 2022, nunc pro tunc to March 2, 2022, the juvenile court made more detailed findings of the parties’ progress than it had in the past. ⁴ Specifically, the parents continued to live with one another and work, DFCS found their home to be "well furnished and suitable for the child," the parents visited the child weekly for three to four hours, and the transporter had "no concerns with the visits which are supervised in the home." It also noted that the father had successfully completed negative drug screens and denied the DFCS's offer to separate his case from that of the mother "in order for his home to be an approved and suitable placement for the child." With regard to the mother, the juvenile court recounted that she had tested positive four times out of sixteen drug screens, that she was still participating in individual counseling, as well as outpatient substance abuse treatment and Narcotics Anonymous. Based on a referral for inpatient drug treatment, the mother agreed to enroll, and DFCS located a program for her. The juvenile court found once again that the child needed to remain in foster care because "[t]he mother has not completed her court-ordered case plan in order to reunify with the child, and the father resides with the mother." The juvenile court's order stated that it "continued the matter for good cause [until April 27, 2022] to allow for the parents to undergo updated parental fitness assessments pursuant to OCGA § 15-11-111." ⁵ In its view, "the mother's untreated drug addiction places the child at risk." While the juvenile court reserved its final ruling "pending the results of these evaluations," it also concluded that the child remained a dependent child. During the hearing, the court explained that it could not "make a determination on the permanency issues without the additional information."

Nonetheless, its order following the hearing states that it adopted the permanency plan for reunification and adoption submitted by DFCS, a copy of which does not appear in the record before us. It is unclear from the order what "remaining portion of the permanency hearing" was continued for good cause.

Additional Continuances

The record before us contains no additional information about the scheduled April 27, 2022 hearing. On June 8, 2022, the parties appeared before the juvenile court; at the beginning of the hearing, the DFCS attorney announced it was "on for a continued permanency hearing," that the updated parenting assessments had been completed, and that DFCS had provided the mother with information about the drug court. However, because the mother's attorney had not had an opportunity to speak to her client about drug court specifics, another short continuance was requested. The mother's attorney raised no objection to another continuance, and the case was rescheduled for June 23, 2022. On June 22, 2022, the juvenile court entered an order, nunc pro tunc to June 8, 2022, rescheduling the case because the mother's attorney requested the continuance for them to have further discussions. It found the request constituted good cause for a continuance.

Order and Hearing at Issue in Case No. A23A0356

At the next hearing, held on June 23, 2022, no mention was made of the updated parental fitness assessments ordered by the juvenile court, and they do not appear in the record before us. The mother's attorney announced at the beginning of the hearing that she had gone over the family treatment court program with the mother and determined that the mother would not be moving forward with it. The only testifying witnesses were the DFCS case manager and the parents.

The case manager testified...