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In re C. H.

Court of Appeals of Georgia, Fourth Division

September 27, 2017

IN THE INTEREST OF C. H. et al., children.

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

          SELF, JUDGE.

         In this case involving the removal of three children from their parents' custody by the Coweta County Department of Family and Children Services ("DFCS"), the parents ask this Court to intercede and safeguard the constitutional and statutory rights afforded them before DFCS may take such a drastic measure. We agree with the parents' view that this "case is about much more than its individual facts. It is about the American legal system, about what our state and country require for every person brought before a court: fairness, respect, and a judicial system that should protect its citizens. . . ." As the record in this case amply supports the parents' claim that the juvenile court deprived them of their constitutional and statutory right to counsel, we reverse the juvenile court's order denying the parents' motion to set aside the custody orders awarding temporary custody of their children to DFCS and instruct it to declare them null and void.

         Dependency and Judicial Review History.

         The record on appeal demonstrates that the parents' history with DFCS began on or about January 3, 2015, when the parents' oldest child, Col. H., telephoned 911 to report a verbal altercation between the parents. Col. H. claimed to be afraid of the father, and law enforcement officers arrested the father and charged him with interference with a 911 call. When he was arrested, the father "smelled of a strong odor of alcohol" and admitted to consuming eight beers. Col. H. also described seeing drugs in the home, and both the father and the mother's sister confirmed that the mother abused drugs.

         DFCS filed a dependency petition in June 2015. In July 2015, after an evidentiary hearing in which the parents stipulated to dependency, the juvenile court found that the children were dependent based upon the parents' alcohol and marijuana abuse.[1] Notwithstanding, the court concluded that continuation in the home would not be contrary to the welfare of the children and that the children could remain in the home provided the parents comply with certain conditions, including cooperating with DFCS and any recommended domestic violence and drug or alcohol assessments/services.

         After considering testimony and evidence at a disposition hearing the following month, the juvenile court found that the father had tested positive for marijuana and alcohol and the mother tested positive for amphetamines, methamphetamine, and marijuana. The children's guardian ad litem noted that the children were doing well with no concerns reported. The court continued legal custody of the children with the parents, but conditioned that placement upon the family's cooperation with DFCS and service providers, including counseling to address the parents' substance abuse and domestic violence issues, testing negative on future drug and alcohol screens, and ensuring that the maternal grandmother move into the home to serve as the children's primary caregiver.

         Following judicial reviews on November 18, 2015, and December 9, 2015, the juvenile court continued custody with the parents, but again conditioned that placement on the family's compliance with the previously-stated conditions. The juvenile court noted that the parents were participating in counseling, but that the mother continues to abuse drugs while the father continues to abuse alcohol. During the December review, the mother agreed to enter a residential drug treatment facility.

         The January 20, 2016 Judicial Review at Issue.

         At the close of the December 9, 2015 judicial review, the juvenile court scheduled the January 20, 2016 judicial review at issue in this case and ordered the parents "to abide by each and every requirement of the Order of the Court." However, the juvenile court's order noting the December 9, 2015 hearing date was actually filed the day after the January 20, 2016 judicial review.

         From the inception of the dependency action in June 2015, through and including the December 9, 2015 judicial review, the record shows that the parents were represented by the same counsel. On January 12, 2016, the parents' counsel executed a motion to withdraw "due to [the parents'] inability to follow legal advice." Counsel filed the motion on January 14, 2016, and certified that she served the parents with the motion by mail on January 12.[2] Counsel then appeared with the parents for the January 20, 2016 judicial review and immediately raised an apparent conflict of interest in representing both parents. The juvenile court initially asked the parents whether they "both still qualify for indigent representation or are you wanting to hire" another attorney and, upon learning their counsel was retained, [3] advised the parents that they "would need to hire another attorney[, ]" to which the parents replied that they hired another attorney the day before who asked them to seek a continuance. The juvenile court stated that "we scheduled [the judicial review] for today and, it sounds like to me, I think you're asking for a continuance so you can secure . . . an attorney." After the juvenile court inquired as to the location of the children, counsel for DFCS offered a lengthy statement outlining her frustration resulting from the parents' unwillingness to complete counseling and in-patient treatment.

         Rather than ruling on the parents' request for a continuance or further addressing their need for counsel, the juvenile court participated in an extended "discussion" between counsel for DFCS, the guardian ad litem, and the parents. During this discussion, no witnesses were sworn and the juvenile court did not admit any evidence.[4] Likewise, the record shows that, after the initial exchange concerning her withdrawal, the parents' counsel did not participate in the hearing. Counsel for DFCS reported that she believed the children "are in immediate danger" due to the parents' ongoing substance abuse issues, the mother's continued residence in the home, the failure of either grandmother to reside in the home, and the children's chronic absences from school. She also offered extensive hearsay from multiple sources concerning the mother's alleged failure to diligently seek substance abuse treatment. In addition, counsel for DFCS and the juvenile court questioned the parents about several issues, including the children's school attendance.[5] As mentioned above, the parents' counsel interposed no objections to the considerable hearsay and undertook no effort to rebut the hearsay allegations through cross-examination or the offering of contradictory evidence. For his part, the guardian ad litem reported that he did not "necessarily [have] any issues there too much, except [the children are] missing school" and stated that the mother was scheduled to enter treatment the next day.

         Again, at this point in the hearing, not a single witness had been sworn, examined or cross-examined. Likewise, the court had yet to admit a single piece of evidence. The parents were not given any meaningful chance to rebut the allegations made against them or to put up a case-in-chief. Moreover, the juvenile court, not counsel for DFCS, raised the issue of removing the children from the parents' custody for the first time, asking, "Is the Department asking for the kids to be picked up?" Counsel for DFCS then responded, "At this point, yes, your Honor. In the last year - we haven't had any cooperation. The mother has not addressed her substance abuse issues, and the father still has alcohol issues." The juvenile court cited its order from a prior judicial review and noted it required "both parents would continue counseling to address their current substance abuse issue and domestic violence issues, and test negative on future screens. That hasn't happened. None of it." When the mother protested, the juvenile court responded that she was not "allowed to fail" drug screens and that

[t]hat was part of the deal was, okay, I'm going to find that they're dependent. I'll let them stay in care. As long as [you] attend[] to your counseling, and as long as you don't test positive. And if you haven't attended to your counseling and you tested positive, you - the two things that I asked for in the protective order, you violated both.

         The juvenile court then transferred custody of the children to DFCS "on a temporary basis due to the protective order." After that statement, the juvenile court suggested that the parents "get[] in touch with your attorney today" and then mentioned additional review "if we get an entry of appearance and we have a lawyer that comes in."

         The Juvenile Court's Order.

         In its written order entered the day after the hearing, which was purportedly based upon "the evidence presented (the consent of the parties)"[6] and, more specifically, "the oral or written testimony offered by the parent(s), the custodian, the foster parent(s), and/or any pre-adoptive parents or relatives providing care for the child(ren) along with all testimony and evidence presented in this case, " the juvenile court granted the parents' counsel's motion to withdraw and denied the parents' motion to continue the hearing, stating that "[t]he parents report having retained a new attorney, but no entry of appearance has been filed." Of particular relevance, the juvenile court's order reflected that the parents were not represented by counsel during the judicial review, although a form portion of the order noted under an "other" category that the "court appointed attorney . . . was "present." Nonetheless, the juvenile court noted that the children

were adjudicated dependent on July 15, 2015, and remained in the physical and legal custody of the parents under a Protective Order with the following terms: (1) The parents will follow all recommendations of their assessments[;] (2) The parents will participate in counseling to address their current substance abuse and domestic violence issues[;] [and] (3) The parents will submit to random drug screens and will test negative.

         The juvenile court then found that the mother "failed to follow the terms of the protective order by continuing to test positive for methamphetamine, amphetamines and marijuana." Although the parents were to remain outside the home and the mother "agreed to enter in-patient rehab immediately" following the December 9, 2015 judicial review, the juvenile court determined that the mother failed to enter treatment despite the availability of bed space in an in-patient facility and that she continued to reside in the home while "shuffl[ing]" the children "between the maternal grandmother and the parent's home." Similarly, the court found that the father continued to test positive for alcohol, did not report any treatment for alcohol abuse, and did not deny that he continued to reside in the home. Citing the children's numerous school absences, [7] the juvenile court concluded that the children "are suffering from educational neglect and can no longer safely remain in the custody of the parents." Ultimately, the juvenile court awarded temporary custody of the children to DFCS and scheduled the next review date for January 26, 2016.

         Arrest of the Parents.

         The day after the January 20, 2016 judicial review, the juvenile court issued arrest warrants for the parents based upon an allegation from a DFCS case worker that the parents absconded with the children "[i]mmediately after court. . . ."[8] Thereafter, the record indicates that DFCS assumed custody of the children in early February 2016, and placed the children with a foster family in Cobb County.

         Successive Judicial Reviews.

         After it transferred custody of the children, the juvenile court held judicial reviews on April 13, 2016 and July 27, 2016, and a permanency hearing on October 19, 2016. At the April and July judicial reviews, the juvenile court continued custody in DFCS because the parents needed to make further progress on their reunification plan, but found that the parents had tested negative in recent drug and alcohol screens and were attending psychological and/or substance abuse counseling. The court further noted that the mother had completed intensive outpatient group substance abuse treatment and that the father had attended NA/AA meetings since March 2016. Both parents had also participated in visitation with the children with no issues reported.

         Following the July hearing, the juvenile court observed that "the parents' attitude throughout the [July] hearing was insolent, and they continue to refuse to take responsibility for the children entering foster care, citing that they 'have done enough' to get their kids back." After speaking with the children, the juvenile court further stated that

[i]t is obvious the parents talk to [Con. H] about all the details of this case and the inner workings of DFCS, blaming everyone but themselves for their current predicament. It is clear the parents are trying to influence the children, which is causing severe anxiety and trauma for the children, particularly [Col. H]. The Court instructed the parents to never . . . talk to the children about DFCS, the Judge or this case again. If it happens, the parents will be held in contempt of court. The parents remained defiant during the admonishment from the court.

         Finally, in the October 2016 permanency hearing, the juvenile court returned the children to the home, finding that the parents substantially complied with their reunification case plan. As a result, the juvenile court returned custody of the children to the parents in an October 19, 2016 order.

         Motion to Set Aside Null and Void Orders.

         On September 23, 2016, the parents filed a "Motion to Set Aside Null and Void Orders, " arguing that the juvenile court deprived them of their due process rights at the January 20, 2016 judicial review by: (1) denying the parents their right to counsel; (2) failing to administer oaths and receive witness testimony; (3) failing to provide the parents with adequate notice and an opportunity to be heard; and (4) failing to follow statutory procedures governing the transfer of custody in a dependency action. During the hearing on the parents' motion, the juvenile court challenged the parents' new counsel's statement that the parents were without counsel during the January 20, 2016 judicial review, claiming that the parents' prior counsel "filed a motion to recuse [sic] which was not granted until after [the request to transfer custody of the children]." The parents' new counsel suggested that prior counsel withdrew during the January 20, 2016 judicial review, to which the juvenile court said, "[d]on't keep saying that. She was not withdrawn until I said she was withdrawn."[9] In offering its ruling at the close of the parties' arguments, the juvenile court observed:

I will admit to you this was a frustrating case, and it was frustrating for a couple of reasons, most of which - and we're not adjudicating this again. I'm just telling you what my thought process is. You have a right to know what I was thinking on that day and today. Okay.
There was an attempt by the court to work with the family time and time again, and there was a continual effort to thwart. There was no real buy-in from the family. . . . It was - there was never any acceptance of responsibility that perhaps my ideas of parenting were not in my children's best interest. And on that particular day I can tell you that I had given you . . . time and time again opportunities to just come forward and say "You're right. We need help, and what do we need to do to make our lives and our children's lives better." I would have kept them there. But instead of working with us and instead of trying to get help, you did everything you could not to get help and not to go through the admittedly painful process of getting better. And at that point it was - it was you against me. It wasn't ...

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