In the Interest of U. B.
In the Interest of U. B.
Opinion of the Court
Appellant, the natural father of U. B. and V. B., appeals from the order of the Evans County Juvenile Court finding that the children, then approximately ages five and two-and-a-half, were deprived, relieving him and his former wife
1. On appeal, the children’s father argues the insufficiency of the evidence to support the juvenile court’s determination that the children were deprived “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [their] physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). “A parent may lose custody where the court determines by clear and convincing evidence that the child is deprived and will likely be harmed by such deprivation. OCGA §§ [15-11-56 (b) (1)]; 15-11-34 (a) (2).” In the Interest of C. N., 231 Ga. App. 639, 640 (1) (500 SE2d 400) (1998); In re Suggs, 249 Ga. 365, 366 (2) (291 SE2d 233) (1982); In re R. R. M. R., 169 Ga. App. 373, 374 (1) (312 SE2d 832) (1983). Deprivation is established by showing parental unfitness upon “either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. [Cits.]” In re D. H., 178 Ga. App. 119, 124 (342 SE2d 367) (1986).
Herein the State offered evidence that U. B. and V. B., then approximately five and two and a half years old, respectively, were
The State also entered in evidence the father’s long criminal history for violence at the termination hearing.
On cross-examination, although generally denying the mother’s allegations, the father admitted that he had been diagnosed as retarded; that he had a long history of circumstances in which he directed his anger at the mother in the presence of the children; that he was concerned to see U. B. exhibit the abusive behavior she observed in the home by spitting and cursing at the mother; and that he had a problem controlling his temper but had participated only intermittently in 12 years of counseling for the problem. Other evidence showed that the father could not read, did not have a valid driver’s license, and required DFCS services to assist him in his daily needs activities.
Under these circumstances, we conclude that the evidence was sufficient to permit the juvenile court to find clear and convincing evidence of U. B.’s and V. B.’s deprivation and that the father’s misconduct or inability to care for their physical, mental, emotional, and moral needs rendered him unfit to retain custody. See OCGA § 15-11-81 (b) (4); In the Interest of R. U., 239 Ga. App. 573, 577 (1) (521 SE2d 610) (1999) (“On appeal, this [C]ourt neither weighs the evidence nor determines the credibility of witnesses; we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.”).
2. The children’s father further enumerates that there was insufficient evidence to support the juvenile court’s determination that reunification not be attempted. OCGA § 15-11-58 (h) pertinently provides:
[t]here shall be a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that: (1) The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family; (2) A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; (3) Any of the grounds for the [termination of] parental rights exist, as set*331 forth in subsection (b) of Code Section 15-11-94; or (4) Any of the circumstances set out in paragraph (4) of subsection (a) of this Code Section exist, making it unnecessary to provide reasonable efforts to reunify.
We have held that the existence of any one of the foregoing criteria is sufficient to support a presumption that further reunification efforts should not be provided. In the Interest of K. M., 240 Ga. App. 67, 71 (522 SE2d 667) (1999).
It is undisputed that the children were twice removed from the parents’ custody and were returned to them after receiving DFCS reunification services. There was clear and convincing evidence on which to terminate the father’s parental rights to the children for medically verifiable, longstanding deficiencies in the father’s mental and emotional health, for imprisonment negatively impacting the children’s lives, for egregious conduct toward the children, and for mentally and emotionally neglecting them. OCGA § 15-11-94 (b) (4) (B) (i), (iii), (iv), and (v), respectively. See Division 1.
At the termination hearing, DFCS’s caseworkers and the children’s guardian ad litem unanimously recommended that reunification services not be rendered. Further, the father’s treating mental health counselor at the time of the termination hearing testified that, although the father had been diagnosed with intermittent explosive disorder, he believed that depression was also present. He also opined that treatment would take two to three years; that relapse was a possibility; and that he did not recommend the children be returned to the father any earlier than a year from the time of the hearing. And, while the father testified he would never hurt the children in the fiiture despite his difficulties with anger, “ ‘the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ [Cit.]” In the Interest of D. I. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994).
In light of the foregoing, the juvenile court, as factfinder, could have found clear and convincing evidence which showed reunification not to be in the best interests of the children for the likelihood that it would only prolong their deprivation. Therefore, the juvenile court did not err in approving the nonreunification plan. In the Interest of R. U., supra; In the Interest of S. A. W., 228 Ga. App. 197, 200 (2) (491 SE2d 441) (1997).
3. Finally, pointing to OCGA § 15-11-58 (h), the father challenges the juvenile court’s order accepting the instant nonreunification plan as fatally defective for want of an express finding that its approval of nonreunification was based upon clear and convincing evidence that reasonable efforts to reunify the family would be detrimental to the children. However, OCGA § 15-11-58 (h), interpreted
Judgment affirmed.
The mother divorced the father in 1998. She does not appeal from the juvenile court’s order.
In this regard, the mother testified, “When he spanks them he leaves red marks on them and it makes me mad.”
On December 11, 1987, the father was convicted in the Superior Court of Bulloch County of two counts of aggravated assault, two counts of pointing a pistol at another, one count of public drunkenness, two counts of terroristic threats and acts, and one count of possessing a firearm as a felon. He was sentenced to ten years confinement to serve twelve months, and the balance was probated. On February 2, 1989, after serving his sentence to confinement, the father’s sentence to probation was revoked for the machete incident referenced above which arose out of a marital dispute between the mother and the father in 1988. The father subsequently pled guilty to two counts of aggravated assault and was sentenced to four years and eleven months to serve. He was paroled on January 13, 1993. His parole was revoked following an April 18, 1997 arrest upon rape and aggravated sodomy charges made by the mother and charges of terroristic threats and acts and obstruction of an officer made by a female parole officer. Subsequently, the father pled guilty to the charges made by the parole officer and was returned to prison where he remained to the date of his release in late 1997.
The father told the caseworker, “[Y]ou know people get hit by cars when they go outside.”
Reference
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- In the Interest of U. B., children
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- Published