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In re E. G. L. B.

Court of Appeals of Georgia, Fourth Division

September 20, 2017

IN THE INTEREST OF E. G. L. B. et al., children.

          DILLARD, C. J., RAY, P. J., and SELF, J.

          DILLARD, CHIEF JUDGE.

         The father of E. G. L. B. and I. N. R. B., two minor children, appeals from the juvenile court's order terminating his parental rights.[1] In doing so, he contends that (1) there is insufficient evidence that the children's dependent status is likely to continue, that the children's continued dependency is likely to cause serious physical, mental, or emotional harm, or that termination of his parental rights was in the children's best interest; (2) he was deprived of due process throughout the juvenile-court proceedings; and (3) the juvenile court erred in denying his motion to dismiss under OCGA § 15-11-301. For the reasons set forth infra, we vacate the judgment and remand the case for additional proceedings consistent with this opinion.

         On appeal, we view the evidence in the light most favorable to the juvenile court's disposition to determine whether any rational trier of fact could have found by clear and convincing evidence that the father's parental rights should have been terminated.[2] Nonetheless, as we have repeatedly emphasized,

this deferential standard of review is tempered by the fact that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one's children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.[3]

         So viewed, the record reflects that the children, E. G. L. B. (born October 15, 2009) and I. N. R. B. (born May 24, 2011), first came to the attention of the Division of Family and Children Services ("DFCS") in February 2012, when it was reported that the mother and father were using methamphetamine and had drug paraphernalia in the home, the children had severe diaper rash, and the mother was engaging in prostitution. At an announced home visit, DFCS found no signs of drug use, but was thereafter unable to contact the mother again. And in May 2014, after the mother admitted to a police officer that she had used methamphetamine, her drug use was then reported to DFCS. But DFCS was once again unable to locate the family for further investigation.

         The father has been incarcerated since April 2013, and in October 2014, the children were placed in the care of their mother's aunt and uncle after the mother was also incarcerated. Almost a year later, in August 2015, the mother attempted to regain custody of the children, but they were placed in foster care because the mother's aunt and uncle had failed to obtain counseling for E. G. L. B., who had been repeatedly acting out sexually. By this time, the mother was no longer incarcerated, but DFCS alleged that foster care was in the children's best interest given the mother's admitted history of drug use and domestic violence with the children's father, her absconding from DFCS, and her lack of income.

         On September 1, 2015, following a hearing on August 25, 2015, at which neither parent appeared, the juvenile court found by clear and convincing evidence that the children were dependent and placed them in the temporary custody of DFCS. Specifically, the juvenile court determined the children were dependent due to the father's incarceration, the mother's history of substance abuse and absconding from DFCS, and the mother's instability, lack of housing, and lack of income. An August 2015 report, prepared by the children's guardian ad litem, indicated that the children had last seen the father in 2013, and they had talked to him on the phone "a few times" since then. A subsequent report, also prepared by the guardian ad litem, noted that the father had a 2012 conviction for possession of methamphetamine, as well as 2013 convictions for aggravated assault, possession of a knife during a crime, and possession of counterfeit drugs.

         A second hearing was set for October 20, 2015. In response to notice of the hearing sent to him by mail, the father wrote to the court, inquired as to whether the court would issue a bench warrant since he would not be able to appear at the hearing and whether a conference call might be possible. He also stated, "I am interested in the well[-]being of my children and want to be involved in their lives. However, if I [cannot] be of any assistance[, ] I do not wish to transfer for court." The court responded to the father's letter, informed him that no bench warrant would issue and a conference call was not possible, and gave instructions on how to request an attorney. Although a handwritten note attached to this letter indicates that a copy of the case plan was also sent to the father, it is not clear from the record what documents were sent.

         The record contains a "Case Plan Report" for the children, including a non-reunification plan for the father. Steps for "[a]ll [p]arents" include signing a release of information; attending "all hearings, appointments with DFCS, [c]ase [p]lan reviews, and scheduled visits"; notifying DFCS of any change in address; providing DFCS with the names and location of any "relatives or other resources"; and contacting DFCS to schedule an appointment to review the parent's progress on the case plan. The plan also notes that "[t]argeted case management services will be received to assist individuals in gaining access to and managing needed services."

         Neither parent appeared at the October 20, 2015 hearing. On November 3, 2015, nunc pro tunc to October 20, 2015, the juvenile court adopted its September 1 order as a final order. The court also found that the children continued to be dependent. Furthermore, the juvenile court determined that the father's maximum release date was in February 2023, although the basis for this finding is not clear from the record, [4] and noted that the father had a non-reunification case plan. But in the same order, the juvenile court found that, to be considered for a return of custody, the father would need to have stable, adequate income and housing for six months, complete a drug-and-alcohol assessment and treatment, undergo a psychological evaluation and comply with any resulting recommendations, complete domestic-violence counseling, complete a parenting class, pay child support, and "establish and maintain a bond with the children through visitation or otherwise." The court also noted that the father had "provided no proof to [DFCS] of the completion of any goals."

         In February 2016, DFCS filed a petition to terminate both parents' parental rights, and a hearing was initially set for May 17, 2016. Despite an attempt at personal service of the petition and accompanying summons, the father could not be served because he was no longer at Coastal State Prison, where he had previously been incarcerated. The father was ultimately personally served at Floyd County Correctional Institute on May 6, 2016. Upon receipt of his summons, the father requested appointment of counsel and an extension of time for the hearing. The court appointed counsel for the father, and based on a request from the mother, the hearing was continued to September 6, 2016.

         In the meantime, the court issued an order on April 26, 2016, following a permanency hearing earlier that month. In that order, the juvenile court found that with regards to the father's compliance with the case plan for reunification, such compliance was "[n]ot applicable as there is no permanency plan of reunification." The court further found that the father had not been in contact with DFCS or the children.

         At the hearing on the petition to terminate, the father did not appear but was represented by counsel. Witnesses testified that E. G. L. B. had reported observing his mother have sex. He also reported that his "dad" had touched him when he was four years old, but the father had gone to prison before E. G. L. B. turned four. Furthermore, E. G. L. B. referred to different people as "dad, " and he never clarified which "dad" touched him. There was also extensive testimony regarding the mother's house, which she was renting from a relative who lived on the same property and is a registered sex offender. Among other issues, the house was infested with roaches and wasps, lacked air conditioning and smoke detectors, and harbored several dangerous conditions, including broken glass on the porch, and medications and construction supplies in locations accessible to children. The children's DFCS caseworker testified to her concerns about the possibility of the children being returned to the mother's custody, including that the mother's home was dangerous and unsuitable and the children were not bonded with the mother. The case worker also testified that the children were doing well in their placement and were bonded with their foster parents, who wished to adopt them.

         At the hearing, the mother testified that she had previously been addicted to pain medication, which she claimed resulted from the father's influence. The father also used methamphetamine. The mother and father's drug abuse occurred in 2010, and they eventually ended their relationship in 2012. Following their split, the father provided no support for the children, but he had regular contact with them, although he did not contact them "a lot." The father's brother, who is also the mother's current boyfriend, testified that after the father was incarcerated, he asked his brother "numerous times" to check on the children. Prior to the September 2016 hearing, the mother had last spoken to the father almost a year ago.

         The DFCS caseworker testified that the father was going to be incarcerated for a "long time[.]" DFCS initiated no contact with the father, aside from providing him with a copy of his case plan in September 2015. After DFCS did not receive a response, it made no attempt to contact the father again. The father did write to DFCS in August 2016, to find out how the children were doing, but DFCS had not responded to his letter at the time of the hearing.

         The father presented evidence of certifications from classes that he completed in prison, including "Active Parenting Now, " "Thinking for Change, " "Re-entry Skills Building Program, " and "Motivation for Change." No testimony was presented regarding the father's criminal convictions or his anticipated release date.

         Following the hearing, the juvenile court terminated the father's parental rights on September 14, 2016. This Court thereafter granted the father's application for discretionary appeal.

         At the outset, we note that the new Juvenile Code applies in this case because the State's petition to terminate parental rights was filed in February 2016.[5] And like the former Juvenile Code, Georgia's new Juvenile Code provides for a two-step process to determine whether terminating parental rights is warranted in a particular case.[6]

         First, as outlined in OCGA § 15-11-310 (a), the juvenile court must find that one of five statutory grounds for termination has been satisfied. And here, the statutory ground at ...


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