In re L-M. C. L.

362 Ga.App. 520

869 S.E.2d 161

In the INTEREST OF L-M. C. L., et al., children.

A21A1474

Court of Appeals of Georgia.

February 7, 2022

Nancee Elaine Tomlinson, Athens, for Appellant.

Christopher M. Carr, Attorney General, Bryan K. Webb, Deputy Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Chad A. Hunt, Assistant Attorney General, for Appellee.

Doyle, Presiding Judge.

Following the grant of her discretionary application, the mother of L-M. C. L., L. O. N. L., A. N. L., and J. F. C-L. appeals the trial court's order terminating her parental rights. She contends that: (1) the juvenile court erred by admitting drug test results; (2) the juvenile court incorrectly applied OCGA § 15-11-212 (f) (1) ; and (3) there was insufficient evidence to support the termination. For the following reasons, we find that the application for discretionary review was improvidently granted and dismiss this appeal.

On appeal from a termination order, we view the evidence in the light most favorable to the appellee and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost. We do not weigh the evidence or determine the credibility of the witnesses but defer to the trial court's factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.¹

So viewed, the record shows that the mother has four children who are at issue in this case: L-M. C. L., a girl born in 2016; L. O. N. L., a boy born in 2015; J. F. C-L., a boy born in 2008; and A. N. L., a boy born in 2007.² In January 2018, the Department became involved with the family based on repeated unexcused school absences. In March 2018, L-M. C. L. and L. O. N. L. were placed in the temporary custody of the Department based on the mother's admitted cocaine use and lack of a sanitary home environment. All four children were adjudicated dependent in September 2019, and they have remained in foster care throughout the case.³ The mother's reunification case plan included the following goals or requirements: complete parenting classes; participate in individual counseling and a substance abuse evaluation and follow all recommendations therefrom; maintain a source of income and provide proof of income to the Department; attend medical appointments and school conferences; complete parenting classes; undergo a psychological and parental fitness assessment; and maintain a drug-free, clean home environment.

At a September 2018 review hearing, the juvenile court found the mother had completed a psychological evaluation and a substance abuse evaluation, but had failed to appear for six scheduled drug screens, failed to meet with her individual counselor, and failed to work with the children on their educational needs during visits, which were "sporadic and inconsistent." At an April 2019 review hearing, the juvenile court found that the mother had tested positive in all but one drug screen between November 2018 and April 2019. The mother gave birth to another child in January 2019, at which time the infant tested positive for illegal drugs and was placed in the care of the Department and cared for in the same foster home as the other children.

In March 2019, the mother began participating in a court-sponsored substance abuse program, Family Treatment Court ("FTC"); she successfully completed the first phase, participated in consistent counseling and parenting skills training, and had been consistently visiting with the children since January 2019. On December 20, 2019, the juvenile court entered an order finding that since the preceding hearing, the mother had 26 positive drug screens for cocaine. After the mother left another drug treatment program in August 2019, FTC terminated her.

In September 2019, the Department filed a petition to terminate the mother's parental rights.⁴ At the August 2020 termination hearing, the mother conceded that her long-term cocaine addiction was the reason for her children's dependency. She admitted that her son born in January 2019 was removed from her custody after testing positive for cocaine at his birth, and she used cocaine during her subsequent pregnancy with her sixth child born in April 2020. According to the mother, she last used cocaine on February 4, 2020, which use was reflected in a positive hair follicle test in February 2020. The mother conceded that since March 2019, she had entered but failed to complete approximately six drug treatment programs; she insisted, however, that she was "more serious" about her treatment this time, though she admitted that she was still financially supported by her husband, who was a "trigger" for her.

The mother had been court ordered to pay $200 per month in child support for the children at issue in this case. At the time of the termination hearing, she was approximately $2,000 in arrears; her only payments included an $84 payment in July 2019, $1,200 in COVID-19 stimulus money that was captured as child support in May 2020, and $111.84 in August 2020. At the time of the hearing, the mother worked at a fast food restaurant, where she was training to be a manager and earned approximately $700 every two weeks.⁵

Christina Essington, a research and development manager for Averhealth, a company which drug tested the mother's urine and hair samples for the Department in 2020, testified that she had received test results from Averhealth's legal department and that the mother's samples were received in the normal course of procedures at the laboratory. Over the mother's objections to admission of her test results, the juvenile court admitted them under the business record exception. The records included: February 2020, July 2020, August 2020 hair tests that were positive for cocaine; negative urine tests taken in February 2020, July 2020, and August 2020; and a urine test in August 2020 that showed an abnormal creatinine level.

Angela Payne, who served as a parent/behavioral aide and supervised visits with the mother and the children, testified that virtual visits occurred in March and April 2020 due to COVID-19 and mostly went well. According to Payne, the mother appeared "very focused on her sobriety," was "much more focused and dedicated" about parenting, and was "definitely a different parent sober."

Roseline Okala, the therapist for L. O. N. L., J. F. C-L., and A. N. L., testified that L. O. N. L. was working on being able to process his feelings of being in foster care and having to visit the mother; he said that he enjoyed visits with the mother and was happy when he returned to his foster home. J. F. C-L. was addressing a lying habit and communication skills with his siblings; he expressed that he liked to visit the mother and being in his foster home. Okala testified that A. N. L. was working on impulsive behavior, anger management, and being nice to his siblings; although A. N. L. told her that he did not hate the mother, he did not want to visit her or be returned to her care. In Okala's opinion, A. N. L. does not have an attachment that one would expect in a normal parent/child relationship and it would be harmful to force him to visit with the mother.

Stephanie Slayton, the Department's case manager for the family, testified that while the mother was showing progress in her outpatient program and had completed certain aspects of her case plan, she had never completed a substance abuse treatment program, her failure to do so showed that her sobriety was not stable enough to care for the children in the long term, and her recent drug screens showed a potential relapse. Although the mother had recently acquired housing, she was not financially independent or stable and had not achieved consistent employment. The children's medical needs were "strongly neglected" before coming into the Department's care. Since entering the foster home, the children had been doing well in school. Slayton had a strong concern about structure and routine, including the mother's nighttime work and plan for babysitting, if the children were returned to her custody. Although the mother demonstrated a pattern of intermittent drug use between efforts of sobriety, Slayton testified that the mother has "really shown ... personal change and growth" since the birth of her youngest child, and she does "ha[ve] the ability to change ... [and] has worked very hard."

Renee Ware, the mother's counselor since April 2020, testified that the mother had been compliant, only missing one session, and had made a lot of progress and obtained goals set by Ware — including obtaining employment, getting her driver's license back, working with a sponsor, and helping with her children's education.

Ware expressed surprise at the mother's positive hair follicle screen, but noted that the cocaine levels in the samples were decreasing.

Tarsha Deadwyler, the manager for the mother's substance abuse treatment program, testified that the mother had recently completed Phase 1 of a drug treatment program. During Phase 1, the mother received treatment five days a week and took weekly drug screens, which were negative. Although Deadwyler was aware of the mother's positive hair follicle test, she was promoted to Phase 2 because she satisfied all program requirements for Phase 1. Deadwyler testified that the mother demonstrated "a willingness" for treatment, abstinence, and following instructions. Because of COVID-19, the program always administered drug tests on Thursdays or Fridays instead of on random days; the mother usually called on Tuesday or Wednesday to ask when she could take a test.

The juvenile court spoke with the two older children in chambers and summarized their statements afterward: the children did not want to return home, preferred to remain in the foster home until their majority, were well taken care of and were doing well in school and in general, and their school attendance issues were...