In the Interest of J. W. H.
In the Interest of J. W. H.
Opinion of the Court
The issue on appeal in Case No. A00A1190 is whether the court erred in extending the State’s custody of a child where competent evidence showed that the child was deprived, the parents were not meeting their reunification plan goals, and the parents had recently surrendered their parental rights to the foster parents on condition that the foster parents be allowed to adopt the child. We hold the court did not err and affirm.
The issue on appeal in Case No. A00A1332 is whether subsequent evidence sufficed to sustain the later termination of the parents’ rights to the child. We hold it did and affirm.
Within weeks of J. W. H.’s birth, the Department of Family & Children Services took him into custody. His parents later consented to a deprivation order on May 18, 1999, that found the infant was failing to thrive, i.e., the infant was not being adequately fed and was in a life-threatening condition. They did not appeal this order. The purposes of the order were to place the deprived child in a nonthreatening environment for his safety and well-being and to allow the parents six months to work intensively with DFACS to achieve reunification.
Three months later in August the court reviewed the child’s progress and determined that DFACS’s custody should continue. Citing the parents’ failure to abide by the goals of the reunification plan, DFACS in September petitioned the court to extend DFACS’s custody of the child for an additional year. Following a hearing on November 16, the court extended DFACS’s custody by one year, which order the father appeals in Case No. A00A1190. Based on a petition to terminate filed November 10, the court held a hearing in December and terminated the parents’ rights to the child, which order the father appeals in Case No. A00A1332.
Meanwhile, six days after the citizens review panel recommended in October termination of parental rights, the child’s natural parents surrendered to the foster parents their parental rights to J. W. H. on condition that the foster parents be allowed to adopt J. W. H. The foster parents immediately petitioned to adopt the child, which petition is pending. DFACS subsequently placed the child with a second foster family residing in a different county, where he is thriving.
Case No. A00A1190
1. In his appeal of the custody extension order, the father first enumerates as error that the juvenile court failed to make a finding
The purposes of the deprivation order were to place the deprived child in a safe, secure environment for his well-being and to give the natural parents six months in which to work intensively with DFACS to meet certain goals to effect reunification. The court found that if placed back with the parents the child would still be deprived, that the parents could not provide a safe, secure environment, and that the parents had failed to achieve the reunification goals. Construed in favor of the decision, clear and convincing evidence supported the findings.
(a) Not Achieving Reunification Plan Goals. With regard to the six goals of the reunification plan, a rational trier of fact could have found clear and convincing evidence that the father was not meeting those goals. First, the father had not attended any parenting classes as required by the plan, despite being offered those classes free of charge. Second, the father was not current on child support payments required by the plan. Third, the reunification plan required the parents to maintain a stable residence for six months, but during the first three months they had five different residences. Fourth, neither parent had visited J. W. H. for over a month prior to the hearing, even though they had been invited to do so if they cleared up some lice or nit infestation problems in their hair. Fifth, the father did not comply with the plan goal of cooperating with DFACS. Sixth, he did not receive recommended family counseling. This evidence sustains the court’s finding that the father was not achieving the six reunification plan goals.
(b) Child Was Deprived and Natural Parents Could Not Provide Safe, Secure Environment. Regarding the purpose of the deprivation order to provide the deprived child with a safe, secure environment for his well-being, the evidence at the hearing also showed that the father had a propensity for violence, having (i) threatened to bring a gun to a parenting class, (ii) threatened the foster parents as well as their daughter, (iii) threatened others associated with the child, and (iv) threatened to simply take J. W. H. and leave. He told the foster parents that he was a member of a violent gang and even wore a blue bandanna into the courtroom reflecting such membership. He had not worked in two years and was incapable of identifying his disability. Just a month béfore the hearing the father and mother consid
In his appellate brief, the father focuses on his and the mother’s surrender of parental rights to the first foster parents as evidence that if the custody order were not extended, custody would then not revert to him but to the foster parents, who all parties agreed had provided good care to J. W. H. He argues that since the extension of the order was unnecessary to provide J. W. H. with a safe, secure environment (the purpose of the custody order), OCGA § 15-11-41 (o) (3) disallowed the extension of the custody order.
The father’s argument fails for two reasons. First, the juvenile court specifically found that the surrender of rights to the foster parents for adoptive purposes
Second, the surrenders were conditional on the first foster parents adopting J. W. H. If the adoption were unsuccessful, the surrenders required that J. W. H. be returned to the natural parents. As the court found that this adoption was unlikely,
Clear and convincing evidence supported the trial court’s findings underlying the order to extend.
2. Citing Edgar v. Shave,
3. The third enumeration of error assumes that the extension order approves DFACS’s plan to end reunification services. The order does not purport to do so, nor does DFACS argue that it was so intended. Thus, this enumeration is without merit.
4. The fourth enumeration of error contends that clear and convincing evidence does not support various findings of the juvenile court. As a rational trier of fact could have found that clear and convincing evidence supported the key findings referenced in Division 1 above, we need not address each of the other secondary findings contested by the father.
Case No. A00A1332
When the same court a month later held a hearing on DFACS’s petition to terminate the parents’ rights, much of the evidence was repeated regarding the lack of a stable residence, the threatened divorce, the father’s failure to cooperate with DFACS, and the parents’ failure to visit the child. Additional evidence showed that since the November 16 hearing (i) the parents had made no progress in meeting the plan goals, (ii) they had made no attempts to verify that they were free of head lice or nits so they could visit the child, (iii) the father still failed to attend parenting classes, and (iv) the parents had paid no child support. The parents were constantly arguing and in conflict, the father did not have the patience to deal with a child and refused to accept responsibility for any wrongdoing or to acknowledge any parenting deficiencies, and the father conceded he could not control his volatile emotions. The father was completely uncooperative with DFACS and not only refused to give DFACS his phone number but threatened to “key” the car of a social worker who came to help. He also warned that DFACS “would get theirs. . . .”
Three professionals, including the father’s own witness (a mental health case coordinator he had called), all had serious concerns about the father’s capability to care properly for the child. Testimony showed that deprivation due to the father’s lack of parenting skills would likely continue or not be remedied.
The father called his mental health case coordinator to the stand to explain why the father was not meeting the plan goals or exhibiting appropriate behavior and to indicate his potential for better com
Judicially noticing the prior filings and orders in the case, the court found clear and convincing evidence to terminate the parents’ rights under the standards set forth in OCGA § 15-11-81. The father appeals on three grounds: (i) the evidence did not suffice as to some factors, (ii) the court erred in considering his failure to comply with the case plan, as such had not been in existence for a year or longer, and (iii) the court had no authority to conclude that the father had a medically verifiable deficiency that made it likely his lack of parental control would continue. We discern no error and affirm.
5. The first question is whether a rational trier of fact could have found clear and convincing evidence (a) of parental misconduct or inability and (b) that the termination of parental rights was in the best interest of the child.
The father does not contest that the child was deprived
(a) Cause of Deprivation Likely to Continue. Regarding the likelihood of the deprivation’s cause continuing, the court considered the
(b) Continued Deprivation Likely to Harm Child. Combined with the evidence of deprivation, these circumstances also authorized the court to find that the continued deprivation was likely to cause serious physical, mental, emotional, or moral harm to the child.
(c) Medically Verifiable Deficiency. Citing In the Interest of C. G.,
6. Because the case plan was only seven months old, the father enumerates as error the court’s considering his failure to comply
OCGA § 15-11-81 (b) (4) (C) (iii) directs that the juvenile court shall consider the failure to comply with a reunification plan if the failure has occurred for a year or longer. “By the clear language of the statute, the trial court is not limited to looking solely at subparagraph (b) (4) (C)’s factors. . . .”
7. The father cites as error the juvenile court’s finding that he had a medically verifiable deficiency of mental illness that rendered him unable to parent the child. Pointing out that the State included no such allegations in its termination petition nor argued such at trial, the father claims he was denied due process by the court sua sponte making this finding.
The father misapprehends the role of this finding in the trial court’s decision. In its detailed order, the court set forth the evidence demonstrating that the child was deprived and that the cause of the deprivation was the parents’ misconduct and inability. Only as a part of its next finding that the cause of the deprivation would likely continue did the court find that the father’s medically verifiable mental condition rendered him unable to care for the child. Thus, this find
This finding was entirely consistent with the allegations of the termination petition, which set forth the actions of the parents reflecting their demonstrated inability to parent the child.
Judgments affirmed.
See In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998) (appellate court construes evidence in favor of juvenile court’s findings to determine if clear and convincing evidence supports continuation of custody in DFACS); see generally OCGA § 15-11-33 (b) (1).
Cf. OCGA § 19-8-4 et seq.
Skipper v. Smith, 239 Ga. 854, 857 (2) (238 SE2d 917) (1977); accord In the Interest of A. N. M., 238 Ga. App. 21, 25 (2) (b) (517 SE2d 548) (1999).
For example, there was evidence that the father was able to harass the foster parents because they were located in the same county as the father. Despite suggestions from DFACS, the foster parents did not wish to move out of the county. Moreover, the foster parents had often been unable to handle other children assigned to them.
205 Ga. App. 337, 338 (1) (422 SE2d 234) (1992).
OCGA § 15-11-81 (a); In the Interest of K. D. S., 237 Ga. App. 865 (1) (517 SE2d 102) (1999).
OCGA § 15-11-81 (b) (4); K. D. S., supra, 237 Ga. App. at 865 (1).
Cf. In the Interest of C. J. V., 236 Ga. App. 770, 774 (513 SE2d 513) (1999) (an unappealed deprivation determination is binding on appeal).
In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232) (1998).
See Moss v. Moss, 135 Ga. App. 401, 404 (5) (218 SE2d 93) (1975) (opinions and recommendations of agency caseworker-investigator experienced in sociology and psychology are’entitled to great weight).
K. D. S., supra, 237 Ga. App. at 867 (1) (d); In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998).
K. D. S., supra, 237 Ga. App. at 867 (2); In the Interest of M. E. C., 228 Ga. App. 9, 14-15 (2) (491 SE2d 107) (1997).
235 Ga. App. 23, 24-25 (508 SE2d 246) (1998).
See In the Interest of A. M. R., 230 Ga. App. 133, 135 (1) (a) (495 SE2d 615) (1998); compare C. G., supra, 235 Ga. App. at 25 (no medical or psychological testimony or reports offered on deficiency).
219 Ga. App. 133, 136 (464 SE2d 253) (1995).
(Emphasis supplied.) Id.
Supra, 219 Ga. App. at 136-137.
Citing In the Interest of S. J. C., 234 Ga. App. 491, 494 (2) (507 SE2d 226) (1998), and In the Interest of C. W. S., 231 Ga. App. 444, 447-448 (3) (498 SE2d 813) (1998), the State argues that the one-year requirement of OCGA § 15-11-81 (b) (4) (C) has been eliminated. These cases stand only for the proposition that there is no statutory requirement under OCGA § 15-11-41 (b) that DFACS make reasonable efforts to reunite the family for at least a year (after a reunification plan is formulated) before seeking to terminate parental rights. The issue in S. J. C. and C. W. S. thus concerned when the State can file to terminate parental rights, not what factors the court can consider in terminating those rights.
See OCGA §§ 15-11-25; 15-11-82 (c); Watkins v. Watkins, 266 Ga. 269, 270-271 (1) (466 SE2d 860) (1996) (State required to set forth in ordinary and concise language the facts demonstrating the deprivation); see generally In the Interest of D. R. C., 191 Ga. App. 278 (1) (381 SE2d 426) (1989).
We need not consider the State’s argument that under OCGA § 9-11-15 (b) of the Civil Practice Act unobjected-to evidence retroactively amends the pleadings. Setting aside the fact that this evidence pertained to an existing allegation of the petition (i.e., whether the misconduct or inability would likely be remedied), we note that generally the Civil Practice Act does not apply to juvenile courts. Coleman v. Coleman, 238 Ga. 183 (232 SE2d 57) (1977); see English v. Milby, 233 Ga. 7, 9 (1) (209 SE2d 603) (1974).
Reference
- Full Case Name
- In the Interest of J. W. H., a child (two cases)
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