In re K.D.E.

654 S.E.2d 651

288 Ga. App. 520

In the Interest of K.D.E., a child.

No. A07A1126.

Court of Appeals of Georgia.

November 21, 2007.

Nathan Andrew Hayes, Curtis Wayne Miller, Lithonia, for Appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Kathryn A. Fox, Assistant Attorney General, for Appellee.

ADAMS, Judge.

The mother of K.D.E. appeals following the termination of her parental rights.

On appeal from a termination order, this Court views the evidence in the light most favorable to the appellee and determines whether any rational trier of fact could have found by clear and convincing evidence that the natural parents' rights to custody have been lost. In the Interest of S.H., 251 Ga.App. 555(1), 553 S.E.2d 849 (2001). "This court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court's fact-finding and affirm unless the appellate standard is not met." (Citation and footnote omitted.) In the Interest of C.R.G., 272 Ga. App. 161, 161-162, 611 S.E.2d 784 (2005).

So viewed, the evidence shows the following: The Department of Family and Children Services brought a deprivation petition and request for protective order on April 23, 1998 because K.D.E. was born with cocaine in his system. The mother was allowed to keep custody of K.D.E. provided, inter alia, she remain drug free and participate in drug screenings and a drug rehabilitation program. However, the petition was subsequently dismissed when the mother could not be located by the date set for the hearing on the petition.

On October 29, 2001, R. Render, the mother's cousin, filed a deprivation petition in the Douglas County Juvenile Court after the mother left K.D.E. and his brother with relatives.¹ The record shows that the mother was incarcerated at that time, and the juvenile court awarded provisional custody to Render in December 2001. In January 2002, the mother was released from incarceration, and a guardian ad litem was appointed to represent the interests of K.D.E. A reunification plan, written by the guardian ad litem, was put in place for the mother and K.D.E. in April 2002. This plan required the mother to obtain and maintain stable housing and employment, become and remain drug free, learn adequate parenting skills, support the children, obey all laws and maintain contact with the children and the guardian ad litem. In July 2002, however, the juvenile court entered an order maintaining custody of the children with Render after finding that the mother had failed to work her case plan and failed to contact the children or the guardian since the last review hearing.

In February 2003, the guardian ad litem entered a report recommending nonreunification as the case plan for the mother because she had not met with her to work on developing a case plan since her release from prison one year earlier, and a motion for nonreunification was subsequently filed. At that time it was recommended that Render be given permanent custody of the children and an order was entered in May 2003 awarding Render permanent custody of the children. However, in December 2003, Render placed the children back into the physical custody of the mother without the court's permission and a case plan report for removal and separation from the mother was subsequently put into effect.

The Department filed a deprivation complaint on January 15, 2004 based on the fact that Render could no longer care for the children. An order for shelter care for K.D.E. was also filed in January 2004, and he was placed in foster care. The Douglas County Juvenile Court subsequently transferred the case to the Juvenile Court of Fulton County because the mother resided there, and that court entered an order accepting transfer of the case on March 24, 2004. The court also continued custody with the Department at that time.

The Department maintained custody of the children throughout 2004. In February 2005, a citizen review panel recommended nonreunification as the plan for K.D.E. A hearing was held in March 2005; the mother was present. Following the hearing, the juvenile court entered an order for reunification as to K.D.E.² even though the court found that the mother had a history of unrehabilitated drug use, was without adequate housing for herself and the children, and without a means to support them financially. In July 2005, the mother was again incarcerated, this time because she violated her probation by failing to meet with her probation officer. In September 2005, the court entered another order for a dual track plan of reunification and termination of parental rights. In that order the court found that the mother was no longer enrolled in the Odyssey Drug Treatment Center but that she was to begin treatment in another facility. The court further noted that the mother still did not have stable housing or employment. The order does not mention the mother's incarceration.

A deprivation petition filed by the Department in January 2006 stated that the mother was incarcerated as of January 17, 2006. Following a hearing, the court entered an order finding that the K.D.E. and his brother were still deprived. The court further found that the mother had not completed her case plan and had failed to complete a drug treatment program. The court noted that although at one point she had obtained stable employment sufficient to support herself and her children, she lost her job when she was incarcerated a second time for a probation violation. The "concurrent" case plan for reunification/termination of parental rights remained in place at that time.

The Department filed a motion for non-reunification on March 27, 2006. A citizen review panel recommended that the plan be changed to adoption for K.D.E., and the court approved the panel's recommendation on April 11, 2006. The Department entered a report at the May review hearing stating that the mother's whereabouts were unknown; the mother was apparently still in prison at that time. The Department also reported that she had failed to complete any of the goals of her case plan, including resolving criminal charges, staying out of jail, completing a substance abuse treatment program, obtaining a legal source of income, obtaining safe and appropriate housing and completing appropriate parenting skills training. The report further recommended that a termination petition be filed so that a more permanent plan could be implemented for K.D.E. The Department subsequently filed a petition for termination of parental rights, alleging that the mother's whereabouts were still unknown, she had not completed her case plan goals and that K.D.E. was still deprived. The mother was released from incarceration in August, and was present for the hearing held on the petition on October 31, 2006. On November 16, 2006, the juvenile court entered an order terminating the mother's parental rights and this appeal followed.

Georgia law provides for a two-step process that must be followed in determining whether to terminate parental rights. OCGA § 15-11-94(a) requires that the trial court "first determine whether there is present clear and convincing evidence of parental misconduct or inability." Parental misconduct or inability is determined under the four criteria set forth in OCGA § 15-11-94 (b)(4)(A)(i)-(iv). Those four factors are: (1) the child is deprived; (2) the lack of proper parental care and control by the parent whose rights are being terminated is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are shown to exist by clear and convincing evidence, then the court must also determine whether termination of parental rights is in the best interest of the child, "after considering the physical, mental, emotional, and moral condition and needs of the child ..., including the need for a secure and stable home." OCGA § 15-11-94(a). In the Interest of C.M., 275 Ga.App. 719, 621 S.E.2d 815 (2005).

1. In her first two enumerations of error, the mother challenges the juvenile court's findings as to the third and fourth factors, arguing that the juvenile court erred by terminating her parental rights without giving sufficient consideration to her present circumstances and challenging the sufficiency of the evidence to support the finding that K.D.E. would be harmed by continued deprivation. We will thus focus our review accordingly.

In deciding whether the deprivation is likely to continue, the mother is correct in her contention that the proper consideration is whether there is clear and convincing evidence of present unfitness. As we have observed,

Although it is well settled that a juvenile court may consider the past conduct of the parent in determining whether the conditions of deprivation are likely to continue, In the Interest of L.G., 273 Ga.App. 468, 474(2)(c), 615 S.E.2d 551 (2005), it is equally true that "evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required." (Emphasis supplied.) In the Interest of A. M., 275 Ga. App. 630, 633, 621 S.E.2d 567 (2005).

In the Interest of D.D.B., 282 Ga.App. 416, 418-419(1), 638 S.E.2d 843 (2006). Moreover, although it is also true that in considering recent improvements, the trial court, not the appellate court, determines whether a parent's conduct warrants hope of rehabilitation, the record must nevertheless contain clear and convincing evidence that the cause of the deprivation is likely to continue. In the Interest of T.B., 249 Ga.App. 283, 287, n. 8, 548 S.E.2d 45 (2001).

As to this issue, the evidence in this case showed that the mother had been released from prison in early August 2006 and had contacted the...