In the Interest of D. C.
In the Interest of D. C.
Opinion of the Court
On January 20,2004, the Pickens County Department of Family and Children Services (“DFCS”) filed a deprivation petition under OCGA § 15-11-2 (8) (A) in the Juvenile Court of Pickens County against Jason Crowe, the legal father of D. C., age six, Darrell Padgett, the putative father of D. P. and D. P.,
In Georgia, a child is deprived in circumstances leaving the child without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. OCGA § 15-11-2 (8) (A).
It has been held that to authorize a termination of parental rights, or even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child. [Cits.]
In re D. H., 178 Ga. App. 119, 124 (342 SE2d 367) (1986). As a matter which lies within the sound discretion of the factfinder, a juvenile court’s deprivation finding will not be disturbed on appeal absent an abuse of discretion. In re D. C. & J. T. C., 176 Ga. App. 30, 32 (335 SE2d 148) (1985); see also In. the Interest of A. L. B., 245 Ga. App. 776, 777 (538 SE2d 557) (2000) (“[W]e are required to view the evidence in the light most favorable to the juvenile court’s order in determining whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights had been lost. Ours is not to weigh the evidence but to defer to the trial judge as the factfinder. [Cits.]”).
So viewing the evidence, the record reflects that on November 21, 2003, the police were called to D. C.’s home upon a report of domestic violence. On cross-examination at the adjudicatory hearing, the mother characterized the event as a “big disturbance” in which she had become loud in that the father had “trashed” the couple’s residence while “irrational” on drugs. DFCS opened its investigation of the family five days later upon a complaint that D. C. was home alone after getting off the bus from school. When case manager Rebecca Smith arrived at the parents’ residence, D. C. explained that he “waits for Mom” after school. The mother thereafter tested positive for marijuana and signed a safety plan in which she “agree [d] to refrain from drug use, to provide adequate adult supervision for her children at all times and to provide healthy food, at least a week’s worth at all times.” At school, D. C. later told school counselor, Jenny Hutto, that getting off the bus with no one at home left him scared.
Otherwise, it is undisputed in the record that the mother had marijuana in her system on the date of the hearing, having failed a random drug test only three days before; that she had failed each of six random drug tests which DFCS administered to her under the safety plan, consistently testing positive for marijuana and, on one occasion, positive for Xanax as well as marijuana. Further, while the mother held three jobs in the three months before her hearing, she was terminated from the first for personal problems; was fired after a day in the second job; and had been employed as a Taco Bell server in the third for only the two days before her hearing began, a Saturday and a Sunday. And, although the mother testified at the juvenile court’s hearing that she had arranged for adequate housing within two weeks time, she did not have suitable housing at the time of her hearing, sleeping on a couch after moving in with a former boyfriend and his roommate following notice of eviction for nonpayment of rent at her apartment. Likewise, while the mother testified that she would try to free herself from drugs in DFCS-mandated drug and alcohol counseling, such counseling had not begun at the time of the hearing. Held:
1. The mother’s contention to the contrary notwithstanding, the juvenile court did not err in finding D. C. to be deprived for want of a stable residence, financial instability, and no stable employment in
A deprived child is one who “ [i] s without proper... care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). Under notice pleading procedure of the Civil Practice Act, not more than a short and plain statement of the claim giving the defendant reasonable notice thereof is required. Allen v. Bergman, 201 Ga. App. 781, 783 (3) (b) (412 SE2d 549) (1991); Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924) (1968). Where, as here, the reasonable import of the word “supervision” clearly extended to a duty of care for D. C. in the mother as well as one of control, the mother cannot assert a lack of notice of matters relevant to her ability to provide such care to avoid preliminary findings appropriate to reaching a conclusion of law as to deprivation. Moreover, the mother chose not to object on this basis in the juvenile court. “Where there is nothing in the record to support a contention of error, there is nothing to review. (Cits.)” (Punctuation omitted.) White v. Plumbing Distrib., 262 Ga. App. 228, 231 (3) (585 SE2d 135) (2003). Each of the juvenile court’s findings as supportedby clear and convincing evidence and all in substantial conformity with the ruling of the juvenile court at trial, the mother’s remaining arguments in support of the instant claim of error are without merit.
2. Neither is there any merit in the mother’s claim that the juvenile court erred in finding D. C. deprived for no clear and convincing evidence that the acts complained of negatively impacted the child. The mother correctly argues that a deprivation petition brought under OCGA§ 15-11-2 (8) (A) “focuses upon the needs of the child regardless of parental fault The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” (Citation, punctuation and emphasis omitted.) In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997); In the Interest of D. E. K., 236 Ga. App. 574, 577 (512 SE2d 690) (1999). However, the mother’s fitness to parent is nonetheless in issue. OCGA § 15-11-2 (8) (A); In re D. H., supra. Pertinently, it is undisputed in the evidence that being left at home alone had frightened D. C.; that D. C. markedly improved in school after his removal from the home; and that the mother was in complete noncompliance with the safety plan that she had signed. We find that there was sufficient clear and convincing evidence for a rational trier of fact to find that D. C. was deprived for the mother’s parental inability or misconduct. Id.; In re D. C.& J. T. C., supra, and
Judgment affirmed. Adams, J., concurs.
By the order complained of, the juvenile court granted, without objection, Padgett’s consent petition to legitimate D. P. and D. P.
D. C.’s father stipulated that he was unable to provide for the child’s needs for mental health issues, inability to provide stable transportation, employment, or housing, and an unresolved substance abuse problem.
The juvenile court placed custody of D. P. and D. P. in Padgett, provided he “comply with a Safety Plan produced by [DFCS] that shall include random drug screens and that he will cooperate with [DFCS] in not providing an opportunity for visitation between the mother and the children except through times and places approved by [DFCS].”
Reference
- Full Case Name
- In the Interest of D. C., children
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- Published