In the Interest of E. N. R.
In the Interest of E. N. R.
Concurring Opinion
concurring specially.
I concur specially to note that the record also supports by clear and convincing evidence the juvenile court’s other finding of deprivation — that the parents were not capable of providing for the children financially. It was undisputed that the sole source of income was $637 in disability payments and $200 in food stamps, leaving $7 each month after paying bills. Although an additional $600 in food stamps could have been obtained if the children were returned, there would still be an insufficient amount for other necessities such as clothing or gas. The parents’ precarious financial situation was further demonstrated by the fact that the electricity had been turned off twice in the three months after the September hearing. And during that time, the father did not find consistent employment
Accordingly, viewing the evidence in the light most favorable to the juvenile court’s judgment, I believe that there was clear and convincing evidence that the children were deprived for the reasons stated in the majority’s opinion and this special concurrence.
Under a previous order, the father was permitted not to work while the children were in his custody, but there was no restriction precluding him from finding employment once the children were placed in the State’s custody.
Opinion of the Court
In this consolidated appeal, the mother and father of four minor children appeal an order of the juvenile court finding their children deprived. The parents contend on appeal that the evidence was insufficient to support the juvenile court’s judgment. For the reasons set forth infra, we affirm the juvenile court’s judgment.
The record reflects that on August 23, 2012, the Department of Family and Children Services (“the Department”) filed complaints for deprivation as to 1-year-old E. N. R., 3-year-old J. W. R., 4-year-old J. W. R., and 5-year-old M. N. R. The complaints alleged, inter alia, that the family’s home had been condemned on August 15, 2012, and that the parents resisted efforts by the Department and refused to cooperate with provided services in spite of a case plan developed after a prior removal.
Thereafter, on August 30, 2012 (nunc pro tunc August 27, 2012), the juvenile court issued a 72-hour hearing order that, “[b]ased upon the evidence presented and the consent of the parents,” found probable cause to believe that the children were deprived. Thus, the court ordered the Department to maintain temporary custody of the children pending a deprivation petition and adjudicatory hearing. The Department subsequently filed a deprivation petition on August 31, 2012. And following a hearing on September 10, 2012, that was continued on September 17, 2012, the juvenile court issued an order that took judicial notice of its own record, continued custody with the Department, and ordered the parties to return in December for a progress hearing.
The juvenile court held a final hearing on the petition on December 17,2012, and issued an order that day, taking judicial notice of its prior record and noting that the “findings of the September order are a matter of record.” The court then detailed the services the Department continued to provide to the parents since September and determined that it was “patently clear that although these parents love their children, they are incapable of providing for their needs.” Ultimately, the court concluded that the children were deprived and decided that continuation in the parents’ home would be contrary to
At the outset, we note that on appeal from a deprivation order, “we must view 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 [children were] deprived.”
[i]s 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;... [h] as been placed for care or adoption in violation of law; . . . [h]as been abandoned by his or her parents or other legal custodian; or ... [i]s without a parent, guardian, or custodian.3
To authorize even a temporary loss of custody by a child’s parent, “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 incapability to care for the child.”
In the case sub judice, viewing the evidence in the light most favorable to the trial court’s judgment, there is clear and convincing evidence that the children were deprived based on the parents’ low level of functioning. At the December hearing, the court heard testimony from a placement prevention program director that the parents had not demonstrated an ability to retain information on what they were taught through Department services — for example, how to properly wash clothing. And in addition to the testimony
For all of the foregoing reasons, we affirm the juvenile court’s judgment in both Case No. A13A1602 and Case No. A13A1603.
Judgments affirmed.
The children were previously removed from the parents’ home in October 2011 due to complaints of deprivation, but the trial court ultimately determined in April 2012 that, although removal had been appropriate, there was insufficient evidence of deprivation to grant the Department’s petition for same. Accordingly, the court dismissed the petition but entered a protective order requiring “strict compliance with the Family Plan” and placing the parents “on notice that a subsequent removal of the children would be considered a second removal.”
In the Interest of G. S., 279 Ga. App. 89, 91 (630 SE2d 607) (2006) (punctuation omitted).
OCGA § 15-11-2 (8). As an aside, we note that Title 15 has been significantly revised by the General Assembly, with the revisions effective January 1, 2014. Ga. L. 2013, p. 294, § 5-1 (“This Act shall become effective on January 1,2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date.”).
In the Interest of G. S., 279 Ga. App. at 91-92 (emphasis supplied) (punctuation omitted).
Id. at 92 (punctuation omitted).
See In the Interest of A. B., 285 Ga. App. 288, 289 (645 SE2d 716) (2007) (“The judge had presided over prior proceedings involving appellant and her other two children and supported his findings of deprivation by taking judicial notice of these prior proceedings.”). As to a trial court’s ability to take judicial notice, we reiterate that in Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984), our Supreme Court held that “a trial court may take judicial cognizance... of records on file in its own court,” id. at 108. In so holding, our Supreme Court explicitly overruled Glaze v. Bogle, 105 Ga. 295 (31 SE 169) (1898), and its progeny, which includes the following cases: Outz v. Whitworth, 248 Ga. 208 (281 SE2d 620) (1981); Carr v. Car-Perk Servs., Inc., 222 Ga. 793 (152 SE2d 692) (1966); Altman v. Fla. Ga. Tractor Co., 217 Ga. 292 (122 SE2d 88) (1961); King v. Pate, 215 Ga. 593 (112 SE2d 589) (1960); Salter v. Keys, 207 Ga. 591 (63 SE2d 376) (1951); Gray v. Bradford, 194 Ga. 492 (22 SE2d 43) (1942); Greene v. Transp. Ins. Co., 169 Ga. App. 504 (313 SE2d 761) (1984); Recoba v. State, 167 Ga. App. 447 (306 SE2d 713) (1983); Kaplan v. Krosco, Inc., 167 Ga.App. 197 (306 SE2d 88) (1983); Global Assocs., Inc. v. Pan Am. Commc'ns, Inc., 163 Ga.App. 274 (293 SE2d 481) (1982); Int’l Indem. Co. v. Blakey, 161 Ga.App. 99 (289 SE2d 303) (1982); Carey v. Phillips, 137 Ga. App. 619 (224 SE2d 870) (1976); Doyal & Assoc., Inc. v. Blair, 138 Ga. App. 314 (226 SE2d 109) (1976); Thornton v. State, 136 Ga. App. 655 (222 SE2d 158) (1975); Watts v. Kundtz, 128 Ga. App. 797 (197 SE2d 859) (1973); Kazakos v. Baranan, 122 Ga. App. 594 (178 SE2d 222) (1970); Rossville Fed. Sav. & Loan Ass’n v. Ins. Co. of N. Am., 121 Ga. App. 435 (174 SE2d 204) (1970); Boston Ins. Co. v. Barnes, 120 Ga. App. 585 (171 SE2d 626) (1969); Berrie v. State of Ga., 119 Ga.App. 148 (166 SE2d 631) (1969); Napier v. City Prods. Corp., 111 Ga. App. 327 (141 SE2d 552) (1965); Turner v. Am. Mut. Liability Ins. Co., 109 Ga. App. 721 (137 SE2d 385) (1964); Akins v. Beaver, 98 Ga. App. 472 (106 SE2d 91) (1958); Ga. Cas. & Sur. Co. v. Reville, 95 Ga. App. 358 (98 SE2d 210) (1957); Davenport v. S. R. R. Co., 42 Ga. App. 160 (155 SE 340) (1930); O’Connor v. United States, 11 Ga. App. 246 (75 SE 110) (1912).
See In the Interest of L. B., 319 Ga. App. 173, 175 (1) (735 SE2d 162) (2012) (“[Appellant] gives us no reason to believe that any objection to taking judicial notice of the deprivation order in this case would have had any merit, nor does she identify specific evidence that she would have brought forward to challenge the earlier deprivation order. Eor this reason, [appellant] cannot show that the taking of judicial notice is reversible error.” (footnote omitted)); accord In the Interest of C. B., 308 Ga. App. 158, 160 (2) n.4 (706 SE2d 752) (2011).
In the Interest of A. B., 285 Ga. App. at 289 (punctuation omitted); see also In the Interest of C. B., 308 Ga. App. at 161 (3) n.5 (“The [appellant] did not include transcripts of the earlier proceedings or copies of the orders entered in those earlier proceedings in the record on appeal. Because he did not, we must presume that the evidence in those earlier proceedings, and the findings in the earlier orders, show precisely what the juvenile court said they show.”).
See supra notes 6-8.
See In the Interest of R. B., 309 Ga. App. 407, 409-11 (710 SE2d 611) (2011) (detailing evidence presented by Department, which included expert testimony by licensed clinical psychologist that mother had IQ of 72 with “borderline intellectual functioning,” had difficulty communicating, would have difficulty applying what she learned in parenting classes, and would be “incapable of ever learning the skills necessary to properly care” for her child); In the Interest of B. W., 287 Ga. App. 54, 60 (651 SE2d 332) (2007) (detailing evidence presented by Department, which included testimony by examining psychologist that, inter alia, “father’s IQ placed him in the cognitively impaired range”); In the Interest of H. E. M. O., 281 Ga. App. 281, 285 (1) (b) (636 SE2d 47) (2006) (detailing evidence presented by Department, which included testimony by psychologist who “concluded that [mother’s] ability to function in life was significantly low”); In the Interest of B. J. F., 276 Ga. App. 437, 437 (623 SE2d 547) (2005)
Reference
- Full Case Name
- In the Interest of E. N. R., children (two cases)
- Cited By
- 6 cases
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- Published