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In re D.W.

Court of Appeals of Georgia, Third Division

March 7, 2017

IN THE INTEREST OF D. W. et al., children.

          MILLER, P. J., MCFADDEN, P. J., and MCMILLIAN, J.

          McFadden, Presiding Judge.

         We granted discretionary appellate review of the juvenile court's order terminating the parental rights of a mother to four of her minor children - eight-year-old D. W., six-year-old E. W., five-year-old T. W., and four-year-old A. W.[1] The mother argues on appeal that there was not clear and convincing evidence to support the juvenile court's conclusion that the cause of the children's dependency was likely to continue. Because the juvenile court's order does not specify which of its many detailed findings support her conclusion that the cause of the children's dependency was likely to continue, it is insufficient to enable appellate review of this issue. So we vacate the judgment below and remand the case for entry of a properly supported order based on the evidence in the case.

         1. Facts and procedural posture.

         The evidence, viewed in the light most favorable to the juvenile court's decision, see In the Interest of C. S., 319 Ga.App. 138, 139 (735 S.E.2d 140) (2012), shows that the children experienced a very chaotic, traumatic, and violent home life. Their father physically abused their mother, and their mother - a methamphetamine addict - made repeated allegations that their father physically and sexually abused the children. The children were removed from the mother's custody due to her addiction, and for several years, as their mother spent time in domestic violence shelters and rehabilitation facilities, the children alternated between the custody of the Department of Family and Children Services ("DFCS") and the custody of their father. Ultimately the father and mother reunited and later married.

         This proceeding commenced in June 2014 when the mother made a new allegation against the father - that he was sexually abusing the oldest child, D. W. - and DFCS filed a complaint that led the juvenile court to remove all of the children from the parents' home and place them in foster care. The psychologist who initially evaluated the children at DFCS's request testified that the dysfunction in their household "was having a very negative impact on the children. The children were all significantly disturbed, having severe problems." This psychologist believed that the children's behavior was consistent with sexual abuse or exposure.

         When they entered foster care, the four children all displayed significant emotional and behavioral problems. DFCS initially attempted to place the children in the same foster home, but that placement was unsuccessful due to the children's disruptive behavior. At the foster parent's request, the four children were removed from that home. DFCS then placed D. W., T. W., and A. W. in one new foster home and E. W. in a different new foster home. The children received counseling, and all but A. W. showed emotional and behavioral progress in their new foster homes. A. W.'s behavior declined in the foster home with her two brothers, and shortly before the termination hearing she was removed from that home because of her aggressive and sexual behavior toward them. Her behavior improved when she was placed in a different foster home by herself. The two boys who remained in the same foster home - D. W. and T. W. - could not be in each other's presence unsupervised because of acts of aggression and sexual behavior between them, and at the time of the termination hearing T. W.'s behavior was beginning to decline. At the time of the termination hearing, only A. W. had a potential adoptive family.

         The juvenile court adjudicated the children dependent as to both parents. As to the mother, the juvenile court found that she had stipulated to the following causes of the children's dependency: inadequate or unstable housing; unstable employment or income; methamphetamine abuse; neglect or lack of supervision; and domestic violence. The juvenile court found that the mother had also stipulated to the following as a cause of dependency: "Counseling needed to address mental health and behavioral needs of children. Children exhibit aggressive behaviors and sexually acting out on each other. Clearly, they have been exposed to inappropriate sexual content or witnessed sexual situations." The juvenile court initially directed DFCS to prepare a reunification case plan for the mother requiring her to become and remain drug- and alcohol-free; complete a substance abuse program and follow any recommendations made; submit to random drug screens; complete a psychological evaluation and follow any recommendations made; receive treatment for domestic violence; refrain from exposing the children to domestic violence; obtain and maintain safe, stable housing; maintain a stable, legal income; complete parenting classes and demonstrate skills learned; and maintain a bond with the children through regular visitation. Based on evidence presented at the termination hearing, the juvenile court found that the mother had "actively worked, and completed, the requirements of her case plan."

         Nevertheless, on May 22, 2015, DFCS petitioned to terminate the mother's parental rights to the children. DFCS alleged, among other things, that the children remained dependent due to the mother's inability to meet their mental health and behavioral needs. DFCS stated that "there exists parental misconduct or inability relative to the . . . children within the meaning of OCGA § 15-11-311 (a) (1) due to a medically verified deficiency of such children's mother's physical, mental, or emotional health that is of such duration or nature so as to render the mother unable to provide adequately for her children."

         After receiving evidence at the termination hearing, the juvenile court entered an order terminating the mother's parental rights to the four children. (The juvenile court also terminated the father's parental rights, and the father has not challenged that order in this appeal. At the time of the termination hearing, the mother was attempting to serve the father with a complaint for divorce.)

         2. Applicable law.

         Georgia's new Juvenile Code applies to this case, because it concerns a juvenile proceeding commenced in 2014. See Ga. L. 2013, pp. 294, 514, § 5-1; In the Interest of M. F., 298 Ga. 138, 140 (1) n. 4 (780 S.E.2d 291) (2015). Like Georgia's former Juvenile Code, the new Juvenile Code provides for a two-step process for determining whether to terminate parental rights. A juvenile court must strictly follow this statutory process. In the Interest of T. Z. L., 325 Ga.App. 84, 100 (1) (751 S.E.2d 854) (2013). In considering whether to terminate parental rights, the juvenile court must "first determine whether one of [five specified] statutory grounds for termination of parental rights has been met[.]" OCGA § 15-11-310 (a). The ground pertinent to this appeal requires the juvenile court to examine the circumstances and causes of a child's dependency, which is defined as the child's "abuse[ ] and neglect[ ] and . . . need of the protection of the court." OCGA § 15-11-2 (22). Under this ground, the juvenile court must determine whether the child's dependency is

due to lack of proper parental care or control by his or her parent, [whether] reasonable efforts to remedy the circumstances have been unsuccessful or were not required, [whether] such cause of dependency is likely to continue or will not likely be remedied, and [whether] the continued dependency will cause or is ...

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