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In re B.R.J.

Court of Appeals of Georgia, First Division

February 8, 2018

IN THE INTEREST OF B.R.J., et al., children.


          MERCIER, JUDGE.

         The mother of four children, B. R. J., J. L. J., A. S. M. J. and T. D. J., filed an application for discretionary appeal from the order of the Juvenile Court of Effingham County terminating her parental rights to the children, contending that the Department of Family and Children Services (DFCS) failed to prove by clear and convincing evidence that her parental rights should be terminated.[1] We granted the mother's application. After a thorough review, we find that the evidence was insufficient to support a termination of the mother's parental rights. Accordingly, we reverse.

         On appeal from a juvenile court's decision to terminate parental rights, this Court reviews the evidence in the light most favorable to the court's ruling and determines whether any rational trier of fact could have found by clear and convincing evidence that the parent's rights should be terminated. In the Interest of C. S., 319 Ga.App. 138, 139 (735 S.E.2d 140) (2015). Further, "[i]n the appellate review of a bench trial, . . . due deference must be given to the trial court, [inasmuch as] it has the opportunity to judge the credibility of the witnesses." Strickland v. Stri ckland, 298 Ga. 630, 633-634 (1) (783 S.E.2d 606) (2016) (citations omitted). Nonetheless,

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.

In the Interest of E. G. L. B., 342 Ga.App. 839, 840 (805 S.E.2d 285) (2017) (footnote omitted).

         So viewed, the evidence shows the following. The children came to the attention of DFCS in March 2014 because B. R. J. had "some skin issues, " and there were "numerous people living in and out of the home." DFCS initiated a "family preservation case" to provide "services in the home due to the children's special needs, some delays noticed of the children, and [to] address[] [the mother's] mental health issues."[2] In November 2014, the mother tested positive for methamphetamine and barbiturates, and DFCS took custody of the children.

         On November 21, 2014, the juvenile court entered a preliminary protective order stating that DFCS filed a complaint alleging that the children were dependent and that the court held a hearing on November 17, 2014. In its preliminary order, the court determined that there was probable cause to believe that the children were dependent as defined in OCGA § 15-11-2 (22), and including the following: there were "allegations of neglect of the children and the children's hygiene"; a safety plan had been developed with the mother and the children's legal father (J. G.) in August 2014 which stated that the mother would not be left unsupervised with the children "due to her unaddressed mental health issues"[3]; the mother was non-compliant with service providers and missed appointments for a psychiatric evaluation and had not cooperated in scheduling a mental health assessment; the children's school reported numerous absences and chronic hygiene issues; T. D. J. was not current on immunizations and had not been to a doctor since his birth; 19 people were living in the three-bedroom, one-bathroom house; the mother tested positive for barbiturates and methamphetamine, admitted that she smoked marijuana and had shown marijuana to the children; the children's father had not helped the mother get necessary mental health assessments; service providers reported a chaotic household and an inability to provide services; and the mother's family members resided with her and had a history with DFCS regarding inadequate supervision and neglect. The court found that removing the children from the home pending the filing of and a hearing on the dependency petition was necessary for their protection and that temporary continuation in foster care was in their best interest. The court stated that "the mother is unable to provide for the basic needs of the children and had unaddressed mental health needs and substance abuse issues. The father is unable and unwilling to help his wife get the assistance she needs or in the alternative find a separate living arrangement for himself and the children."

         In December 2014, the court held an adjudicatory hearing on DFCS's dependency petition.[4] In its order of adjudication and temporary disposition entered January 9, 2015, the juvenile court set out essentially the same findings made in its November 2014 order. In addition to the findings stated above, the court added that A. S. M. J.'s immunizations were not current; that the mother's girlfriend (who also lived in the house) tested positive for marijuana; and that the children's father was "a registered sex offender through charges brought in Delaware." The court found that the children were dependent as "a result of substance abuse by the children's parent, . . . [and that] [t]he substances abused are barbiturates, methamphetamine, and marijuana, " and that the parents had not been cooperative with DFCS's efforts to provide resources and services.

         On January 16, 2015, after a disposition hearing, the court entered an order continuing temporary legal custody with DFCS. The court noted that DFCS submitted a case plan for reunification and that it was a suitable plan, and ordered DFCS to implement the plan.

         In April 2016, DFCS filed a petition to terminate the mother's parental rights to the four children, citing the mother's failure to make progress on her case plan for reunification. The petition included the following allegations: the mother was discharged from parenting classes because her attendance was inconsistent and she was "non-complian[t]"; her only income was Social Security disability benefits and she failed to provide DFCS with a budget to show that she could support herself and her children on her income; "random other people" were living in or visiting the home; her attendance in a substance abuse treatment program was sporadic and her participation was sometimes inappropriate; she admitted that she smoked marijuana and that she did so in the children's presence; she had positive drug screens during the case plan; she had slurred speech and difficulty standing during one visit with the children, and tested positive for phenobarbital at that visit; she was diagnosed with generalized anxiety disorder and mood disorder; her mental health needs were not being met; she was discharged from counseling and anger management class for inconsistent attendance and inappropriate engagement when she attended; she had difficulty controlling the children during visits; and she did not provide financial support for the children while they were in DFCS's custody.

         A hearing on the termination petition was held on June 20, 2016. The caseworker testified that in November 2014, when DFCS initially took custody of the children: 19 people were residing in the home, including the mother, her mother, her sister, her sister's family, and the legal father of the four children; the mother had tested positive for methamphetamine and barbiturates; the children had "special needs";[5] and the mother had "mental health issues."

         The caseworker then testified as to the components of the reunification case plan that was established for the family. The written case plan was not included in the exhibits DFCS introduced at the hearing and it is not in the appellate record. Nonetheless, according to the caseworker, the plan required the mother to: schedule a psychiatric evaluation and follow the treatment recommendations of the healthcare provider; attend and complete counseling sessions; participate in anger management therapy "to promote . . . strategies, . . . techniques, and . . . skills to use in place of the verbal and physical aggression that we were seeing"; participate in parenting education that focuses on substance abuse; attend and complete a substance abuse program; remain drug- and alcohol-free for six consecutive months and test negative when screened; obtain a source of income for six consecutive months in order to meet the financial needs of herself and her family; obtain and maintain stable clean and safe housing that was large enough for her and the children for six consecutive months; create a childcare plan to ensure proper supervision of the children; and cooperate with family service providers.

         When asked if the mother completed any of the plan requirements, the caseworker replied that the mother completed an anger management workshop; that the mother and her mother were living together in a different house from the removal house, but the caseworker had seen "a couple of other people there" during her visits and was concerned that "in six weeks I'll show up unannounced and there's already other adults in and out of that home"; the mother had not presented DFCS with a budget; the mother had not paid child support while the children were in foster care (though she was on SSI and had not been ordered to pay child support); the mother tested positive for phenobarbital in February 2016 during a visit in which she was "very disengaged, sleepy, very lethargic, " though the mother explained that she had taken only her prescribed medication and DFCS obtained information "a couple of months" later verifying the prescription; the mother was evicted in January 2016 from her previous rental house; and the mother had gotten into a physical altercation with two teenagers.

         During cross-examination, the caseworker acknowledged that the mother received a certificate of completion for a substance abuse treatment program; that she had not tested positive for any illegal substances since November 2015; and that the mother's new home had sufficient space. The caseworker testified that two parenting education providers had discharged the mother from their programs, one for "non-compliance, " that some parenting education providers "would not take [the mother's] case, " and that the mother would have "to seek out services on her own." The caseworker agreed that during a prior judicial case review the court had directed DFCS to provide the mother with additional parenting classes, but stated that the company to which DFCS had referred the mother after that review did not accept the mother's case. When she was asked what "neglect issue" remained, the caseworker replied "[t]he untreated mental health issues." She stated that the mother's mental health status "would interfere, and . . . did interfere, with getting the children to school on time, making sure they went to school, and that's some of the academic delays that are with the older children."

         The mother testified that she was "see[ing] the doctor at Gateway [Behavioral Health], " and was "also see[ing] a counselor at Gateway." She testified that she underwent an assessment and mental health treatment at Gateway (pursuant to a referral by her caseworker), that she went for several months, and that she stopped going in March 2016 because the providers told her she did not need to return; she stated that her caseworker did not tell her that she needed to resume counseling. The mother testified that she also went to another facility, Coastal Harbor, for counseling in 2016, where she was evaluated and told that she needed to continue taking her medication but did not need counseling.

         When asked why she was receiving Social Security (or SSI) disability payments, the mother testified that she has scoliosis, seizures, and kidney problems; the mother added that she was prescribed phenobarbital and other medications, including a prescription for depression, that she takes her medications as prescribed, and that the anti-seizure medication prescribed to her makes her sleepy. She stated that she was sleepy at the February 2016 visitation because she had a seizure the night before and had gone to the hospital, that at the hospital she was given anti-seizure medication, that she was told not to skip doses of her medications, and that she then took a prescribed dose of the medication before going to the DFCS office. Because the medication makes her drowsy, the mother stopped taking it during the day and takes it only at night. When asked if she has a bi-polar disorder, the mother replied that she had said that she did, but that a doctor told her she did not. Regarding the physical altercation with two teenagers, the mother testified that they had injured one of her family members, and that she believed that the fight occurred before she took the anger management class.

         The mother testified that only she and her own mother lived in the then-current house, that other people did visit her, that the children's legal father was in jail and no longer lived with her, that she was divorcing him, and that she was no longer in a relationship with the boyfriend she had been seeing. She testified that she receives disability payments of $733 per month and food stamps; that she and her mother share the rent payment; and that her own portion of the rent is $300 per month. The mother stated that she was evicted from her previous residence not because she was unable to pay the rent, but because the home was not safe; she decided to stopped paying rent and moved out. She testified that she went to the child support office to start making child support payments when the children were in ...

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