In the Interest of T. D.
In the Interest of T. D.
Opinion of the Court
The mother of T. D., E. C., T. C., and A. D. appeals from the juvenile court’s orders finding the children deprived, extending temporary custody with the Department of Family and Children Services (DFCS), and denying the mother’s motions for return of custody. For the reasons that follow, we reverse the judgments as to T. D., E. C., and T. C., and vacate the judgment and remand the case with direction as to A. D.
On appeal from a juvenile court’s order finding deprivation or extending temporary custody of a child with DFCS, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived.
Viewed in the light most favorable to the juvenile court’s findings, the record shows that on December 10, 2008, the mother filed a police report alleging that her husband (the father of E. C. and T. C. and the stepfather of T. D. and A. D.) had slapped her and hit her in the face. At the time, T. C. and A. D. were already in the custody of DFCS based on findings of neglect (specifically, the parents’ failure to provide adequate housing and for the children’s medical needs, and the father’s incarceration); T. D. and E. C. were not in DFCS’s custody, as the mother had placed them with relatives pursuant to temporary letters of guardianship.
In February 2009 (nunc pro tunc to January 22, 2009), the juvenile court issued an order in A. D.’s deprivation case prohibiting the mother and her husband (hereafter, the father) from having any contact with each other, and prohibiting the father from having any contact with A. D. or anyone in the mother’s family, until the father proved he had completed an approved course in domestic violence and counseling. The court continued temporary custody of A. D. with DFCS based on what the court termed “unresolved domestic violence issues” and A. D.’s need to complete residential treatment that the mother was unable to provide for mental, emotional and behavioral problems.
In another February 2009 order (nunc pro tunc to January 22,
In May 2009, T. D., E. C., and T. C. came into the emergency care of DFCS based on allegations that the mother had “failed to protect [the children] from exposure to domestic violence” between the parents.
Deprivation petitions were filed as to these three children in May 2009, and again as to A. D. in August 2009. (A. D. had been in DFCS’s temporary custody since 2007.) Regarding all four children, the petitions were based on unspecified allegations of exposure to domestic violence between the parents. As to A. D., the petition additionally alleged that A. D. required residential treatment for unspecified mental, emotional and behavioral health problems that the mother was unable to provide, and that the mother was unable to provide proper parental discipline, care and control of A. D.
In August 2009 (nunc pro tunc to July 9, 2009), the court entered orders finding T. D., E. C., and T. C. deprived and awarding temporary custody to DFCS based on the mother’s failure to obtain stable employment and adequate housing, and her failure to protect the children from domestic violence. The court noted that the father had been incarcerated on charges related to “issues of domestic violence,” but did not cite to any specific incidents or charges.
In May 2009 and November 2009, DFCS developed reunification case plans as to all four children requiring the mother to, among other things, not have contact with the father without a therapist’s approval; attend domestic violence counseling; obtain and maintain a source of income and safe, stable housing; complete parenting classes; and pay child support. The court approved the plans.
In an August 2009 judicial review order pertaining to A. D., the court stated, inter alia, that temporary custody would be continued
In March 2010, DFCS filed a motion to extend its custody of T. D., E. C., and T. C. for one year and for judicial review of its permanency plan (concurrently for reunification with the parent and nonreunification and adoption). The same month, the mother filed motions for the court to return custody of all four children. An evidentiary hearing was held in April 2010.
On May 12, 2010 (nunc pro tunc to April 22, 2010), the juvenile court entered orders finding that T. D., E. C., and T. C. continued to be deprived, granting DFCS’s motions to extend custody as to those three children, finding that returning A. D. to the mother’s home would be contrary to his welfare, and denying the mother’s motions for return of custody as to all four children. The court found that the mother had complied with the case plan for reunification by completing parenting classes, maintaining housing and employment, and completing a domestic violence and conflict resolution course. However, the court found that the mother had failed to pay child support, “failed to show her understanding of her domestic violence issues,” and was “not taking realistic steps to address prevention of future occurrences.” The court cited testimony from a therapist that the mother had “a history of domestic violence relationships”
1. In several related assertions of error, the mother contends that the evidence was insufficient to find that the children continued to be deprived and that custody should therefore be extended with DFCS.
A deprived child is defined by OCGA § 15-11-2 (8) (A), in pertinent part, as a child who is 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. And deprivation sufficient to authorize a parent’s temporary loss of custody of a child must 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 incapability to care for the child. The petition must allege present deprivation, not past deprivation or potential future deprivation.5
Where, as here, the children were in DFCS’s custody, the correct inquiry for the juvenile court was whether the children would be deprived if returned to the parent as of the date of the hearing.
In this case, the evidence was not sufficient to permit a rational trier of fact to find that the children, if returned to their mother as of the date of the hearing, would be without proper parental care or control necessary for their physical, mental or emotional health, and thus would be deprived. The mother had completed the required counseling and course work, was employed, and had set up a suitable
2. In its order denying the mother’s motion to return custody of A. D. and instead continuing custody with DFCS, the juvenile court mentioned, in addition to the domestic violence issue addressed in Division 1, that A. D.’s continued placement in a residential treatment program “is appropriate for [his] needs” and that it “would be contrary to the welfare of the child” to return him to his mother’s home. But the court did not include any findings of fact as to A. D.’s needs (at the time of the hearing or otherwise), or any findings of fact as to why those needs would not be met if he were returned to his mother’s custody. If the record contained such evidence, the juvenile court did not cite to or rely on such evidence in reaching its conclusion.
Judgment reversed in part and vacated in part, and case remanded with direction.
In the Interest of Q. A., 306 Ga. App. 386, 388 (2) (702 SE2d 701) (2010) (affirming order extending custody with DFCS where supported by clear and convincing evidence); In the Interest of N. H., 296 Ga. App. 258 (1) (674 SE2d 126) (2009) (appellate courts review order finding deprivation in light most favorable to juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that child was deprived); In the Interest of Q. H., 291 Ga. App. 598 (662 SE2d 358) (2008) (in appeal from order extending temporary custody with DFCS pursuant to deprivation petition, court views evidence in light most favorable to juvenile court’s findings).
In May 2009, T. D. was twelve years old, E. C. was eight years old, T. C. was three years old, and A. D. was fourteen years old.
The therapist’s testimony was: “[The mother] had other domestic violence relationships or at least one that I’m aware of because she sought shelter in a local domestic violence program.”
A judicial review order states that the mother was found in contempt of the February 2009 order in August 2009, though it does not indicate the date(s) of the violation(s).
In the Interest of C. L. C., 299 Ga. App. 729, 733-734 (1) (683 SE2d 690) (2009) (punctuation and footnotes omitted).
See In the Interest of C. H., 305 Ga. App. 549, 559 (2) (a) (700 SE2d 203) (2010).
See OCGA § 15-11-58 (n) (3); In the Interest of J. P., 280 Ga. App. 100, 105 (2) (633 SE2d 442) (2006).
See In the Interest of C. L. C., supra at 735 (1).
See In the Interest of J. P., supra; In the Interest of C. F., 266 Ga. App. 325, 328 (1) (596 SE2d 781) (2004); In the Interest of M. L. C., 249 Ga. App. 435, 439 (548 SE2d 137) (2001).
In the Interest of M. L. C., supra.
See In the Interest of D. S., 212 Ga. App. 203, 204 (441 SE2d 412) (1994), overruled on other grounds, In the Interest of J. P., 267 Ga. 492, 493 (480 SE2d 8) (1997).
In the Interest of C. D. E., 248 Ga. App. 756, 766 (2) (546 SE2d 837) (2001); In the Interest of J. B., 241 Ga. App. 679, 680 (1) (527 SE2d 275) (1999); In the Interest of D. L. G., 212 Ga. App. 353 (1) (442 SE2d 11) (1994).
See In the Interest of J. B., supra.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.