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In re S. O. C.

Court of Appeals of Georgia

July 2, 2015

In the Interest of S. O. C., a child

Termination of parental rights. Hall Juvenile Court. Before Judge Jolliff.

Irene Serlis, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, F. Barton Patterson, Assistant Attorney General, for appellee.

DILLARD, Judge. Ellington, P. J., and McFadden, J., concur.

OPINION

Page 786

Dillard, Judge.

The mother of a minor child, S. O. C., appeals from an order of the Juvenile Court of Hall County terminating her parental rights and its subsequent denial of her motion for new trial. Specifically, the mother contends that the court lacked clear and convincing evidence to support its findings that (1) the child was deprived; (2) lack of proper parental care or control caused the deprivation; (3) such cause was likely to continue; and (4) the continued

Page 787

deprivation would cause or was likely to cause serious physical, mental, or emotional harm to the child. Because we find that there was insufficient evidence to support the juvenile court's finding that continued deprivation would cause or was likely to cause harm to the child, we reverse.

Viewed in the light most favorable to the juvenile court's findings,[1] the evidence shows that S. O. C. was born on December 26, 2011, a few weeks premature. At the time of his birth, S. O. C. had marijuana metabolites in his system and he was underweight. Additionally, at that time it was determined that both the mother[2] and S. O. C. were HIV-positive. As a result, on January 17, 2012, Hall County Department of Family & Children Services (" DFCS" ) successfully sought an authorization for shelter care. On January 24, 2012, the mother moved to contest the authorization of shelter care, and on that same day, DFCS filed a deprivation petition. Following a February 10, 2012 hearing, the juvenile court entered an order finding that S. O. C. was deprived based on its conclusion that the mother's marijuana use impaired her ability to care for S. O. C.'s medical needs. Nevertheless, the court returned custody of S. O. C. to his mother subject to several conditions, including that the mother refrain from illegal drug use, attend to S. O. C.'s medical needs, and continue living with her boyfriend, who had stable employment, a stable residence, and wished to raise S. O. C. as his own son.

On May 23, 2012, the juvenile court issued a judicial-review order, finding that the mother had remained drug free and otherwise compliant with her case plan. The court entered a similar order on September 12, 2012, finding that the mother had completed a parenting class, taken S. O. C. to all of his medical appointments, and had remained in the residence she shared with her boyfriend. However, she had missed a recent drug screening, which the court considered to be equivalent to a positive test. In addition, as a result [332 Ga.App. 739] of a substance-abuse assessment, the mother was advised to undergo 17 weeks of substance-abuse treatment. But she disagreed with this assessment and indicated her intention to seek a second opinion.

On January 17, 2013, DFCS filed another deprivation petition, alleging that the mother had tested positive for marijuana in an August 2012 drug screening and that she had missed other screenings and failed to attend the recommended substance-abuse-treatment classes. However, on February 4, 2013, the juvenile court issued an order, stemming from a November 19, 2012 hearing, in which it allowed the mother to keep custody of S. O. C. in light of the fact that she had not failed any additional drug tests since the August screening. But one day later, the court issued an order finding that the mother had tested positive for marijuana in August and September 2012, and warning her that further substance abuse would likely result in the loss of custody of S. O. C.

On April 10, 2013, after a February 18, 2013 hearing, the juvenile court again found S. O. C. to be deprived based on the fact that the mother had failed to complete the substance-abuse-treatment classes, had tested positive for marijuana as recently as December 2012, and had missed several other scheduled drug screenings. However, the court delayed final disposition of S. O. C. to allow the mother to enter the Hall County Family Treatment Court. This order was followed by an order of final disposition on April 24, 2013, which allowed the mother to retain custody of S. O. C. subject to her successful completion of the Family Treatment Court program. But on May 1, 2013, after determining that the mother had tested positive for marijuana in three recent drug screenings (and, therefore, was required to serve a fifteen-day jail term), the juvenile court entered an order placing custody of S. O. C. with DFCS. At that time, the mother requested that custody be placed with her boyfriend, but the court declined to do so because he had no one to provide child care while he worked. On June 10, 2013, the court entered a final disposition order, again noting that it was placing custody of S. O. C. with DFCS based on the mother's continued marijuana use.

Shortly thereafter, a reunification plan was established. ...


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